RLA-6 (1).pdf · Isay: Die privaten Rechte und Interessen im Friedensvertrag ..... 200 Leibholz:...

RLA-6 LFH Neer AND Pauline Neer v. Mexico, United States- Mexico General Claims Commission (Decision, 15 Oct.

1926), 4 UNRIAA 60

THE

AMERICAN JOURNALOF

INTERNATIONAL LAW

VOLUME 21

1927

PUBLISHED BY

THE AmERICAN SOCIETY OF INTERNATIONAL LAW

PUBLICATION OFICE:THE RUMFORD PRESS

CONCORD, N. H.

EDITORIAL AND EXECUTIVE OFFCE:2 JACKSON PLACE

WASIINGTON, D. C.

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COPIuGHT, 1997

BY

THE AMERICAN SOCIETY OF INTERNATIONAL LAW

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CONTENTS OF VOLUME TWENTY-ONE

[No. 1, January, 1927, pp. 1-229; No. 2, April, 1927, pp. 231-416;No. 3, July, 1927, pp. 417-658; No. 4, October, 1927, pp. 659-8931

PAGETm UNITED STATES AND TIE PERMANENT COURT OF INTERNATIONAL JUSTICE.

Quincy W right .......................................................... 1THE FIFTH YEAR OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE. Manley

0 . H adsn ............................................................. 26DIsARmAMENT. Tasker H. Bliss ............................................. 36THE RIGHT OF APPEAL IN NATURALIZATION CASES N TE= FEDERAL COURTS. Henry

B . H azard ...... ...................................................... 40Tim NATRE OF A-xmCAN FOREIGN PoLCY. Pitman B. Potter ................. 53NEUTRALIZATION AS A MovEMENT IN INTERNATIONAL LAW. Malbone W. Graham, Jr.. 79THE INTERNATIONAL MIXED COURT OF TANGIER. Manley 0. Hudson ............. 231TiE APPLICATION OF SOVIET LAWS AND THE EXCEPTION OF PUBLIC ORDER. Max

H abicht ................................................................ 238CONSUILAR PRIVILEGES AND IMMUNITIES UNDER THE TREATIES OF FRIENDSHIP, CoM-

MERCE AND CONSULAR RIGHTS. Irvin Stewart .............................. 257TaE EFFECT OF CHANGES OF SOVEREIGNTY ON NTIONAI= . C. Luella Gettys...... 268How To FIGHT SAVAGE TRIBES. Elbridge Colby ................................ 279THE GR.ADUAL .,NrD PROGRESSIVE CODIFICATION OF INTERNATIONAL LAW. James

Broun Scott ............................................................ 417THE RENDITION OF THE INTERNATIONAL MXD COURT AT SHANGHAI. Manley 0.

H u&;on ........ ...................................................... 451THE MIXED CLAIMS COMMISSION AND GERMAN PROPERTY IN TIE UNITED STATES OF

AMERICA. Arthur Burchard ............................................. 472DOMINION STATUS IN INTERNATIONAL LAW. V. Kenneth Johnston ................ 481RECENT DEVLLOPMENT IN THE LAW OF UNNEUTRAL SERVICE. Norman L. Hill.... 490PROGRESS OF THE WrORK OF TEE LEAGUE OF NATIONS CODIFICATION COMMITTEE.

Je.s- e S. Reeves ......................................................... 659NATIONAL ECONOMIC INDEPENDENCE IN THE LIGHT OF THE INTERNATIONAL ECO-

NOMIC CONFERENCE. Wallace McClure ................................... 668PROBLEMS OF INTERNATIONAL LAW IN THE MI.icAN CONSTITUTION OF 1917. John

P. Bullington ........................................................... 685THE PERSONAL DIPLOMACY OF COLONEL HOUSE. Lester H. Woolsey .............. 706THE INSTITUTE OF INTERNATIONAL LAW. James Brown Scott .................... 716EDITORIAL CoMENT:

The British Commonwealth of Nations. James Brown Scott ................. 95The law of territorial waters. Philip larshall Brown ....................... 101The denationalization of American citizens. James W. Garner ............... 106The immunity of public ships employed in trade. Edwin D. Dickinson ........ 108The future of international arbitration only. L. H. Woolsey ................. illProjects of the American Institute of International Law:

Immigration, Responsibility of governments, Diplomatic protection, Ex-tradition. Edwrin Al. Borchard ................................... 11s

Transit by land, waterways, and air. Arthur K. Kuhn .................. 123Maritime neutrality. Quincy Wright ................................. 127Pacific settlement and Pan American Court of Justice. William C. Dennis.. 137Measures of repression and conquest. David J. Hill .................... 145

China's termination of unequal treaties. L. H. Woolsey ..................... 289

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CONTENTS

PAOE

Mexican land laws. Philip Marshall Brown .............................. 294Concerning attempts by contract to restrict interposition. Charles Cheney Hyde. 298Limitations on coercive protection. Edwin M. Borchard .................... 303Projects of the American Institute of International Law:

Preamble, General declarations, Declaration of Pan American unity andcooperation, Fundamental bases of international law, Nations, Recog-nition of new nations and new governments, Declaration of rights andduties of nations, Fundamental rights of American Republics, PanAmerican Union. Chandler P. Anderson .......................... 306

Treaties, Diplomatic agents, Consuls. Ellery C. Stowell ................. 313The elimination of the loopholes in arbitration treaties. C. G. Fenwick ........ 499The Lausanne Treaty. Philip Marshall Brown ............................ 503The Supreme Court interprets the liquor treaties. Edwin D. Dickinson ....... 505The doctrine of rebus sic stantibus and the termination of treaties. J. W. Garner.. 509Important decisions of the Mixed Claims Commission, United States and Mexico.

Edwin M . Borchard ................................................. 516Francis W. Kelsey-In memoriam. James Brown Scott ..................... 522Institute of Pacific Relations, 1927. George Grafton Wilson .................. 524Basis of the law against confiscating foreign-owned property. Chandler P.

Anderson .......................................................... 525The classification of diplomatic agents. David Jayne Hill ................... 737Competence of the courts in regard to foreign states. Arthur K. Kuhn ........ 742The case of the Irish Republic's funds. Edwin D. Dickinson ................. 747A question of state succession. J. W. Garner .............................. 753The three-Power naval conference. C. G. FenwicL .......................... 757The most-favored-nation clause. Quincy Wright ........................... 760Institute of Pacific Relations. George Grafton Wilson ....................... 763The neutrality claims against Great Britain. Edwin M. Borchard ............ 764Note: l'Institut international de droit public ................................. 768

CuRREN' NoTEs:Postponement of the annual meeting of the Society ......................... 147Oscar S. Straus-In memoriam. James Brown Scott ........................ 147Mr. Hughes appointed to the Permanent Court of Arbitration ............... 150Carnegie Endowment fellowships in international law ....................... 151Fellowships at The Hague Academy of International Law ................... 151Prize competition of Leiden University .................................... 152French office of foreign legislation and international law ..................... 152An analysis of the Bulgarian nationality law. Theodore Geshkoff .............. 534Annual meeting of the American Society of International Law ................ 537Peace in Nicaragua ..................................................... 539Payment of American share of the Dawes annuities ......................... 541War claims settled by Great Britain and the United States .................. 542Copyright between Czechoslovakia and the United States ................... 544Carnegie Endowment fellowships in international Law ...................... 545

CHRONICE or INmRNATiONAL EvENrs. M. Alice Matthews ......... 154, 317, 547, 770JUDICIAL DEcIsIoNs INvoLvNG QUESTIONS OF INTERNATIONAL LAW:

General Claims Commission, United States and Mexico:Hopkins v. M exico .................................................. 160Home Insurance Co. v. Mexico ....................................... 167Parker v. M exico ................................................... 174Faulkner v. M exico ................................................. 349Adler v. M eico .................................................... 354

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CONTENTS V

PAGE

Roberts ,. M exico .......... ....................................... 857Janes i. M exico .................................................... 362Neer ,. Mexico ............................................ 555Swinney v. M exico .................................................. 562Falcon v. United States ............................................. 566Quintanilla v. United States .......................................... 568Youmans v. M exico ................................................. 571Connelly v. M exico ............. ................................... 579Garcia and Garza v. United States .................................... 581D avies v. M exico ................................................... 777Roper v. M exico .................................................... 777Brown, Sanders and Small o. Mexico .................................. 782Corrie v. M exico .................................................... 782M assey v. M exico ................................................... 783Johnson et al v. Mexico. (Daylight case) .............................. 791Putnam v. M exico ............................. .................... 798American Short Horn Breeders' Assn. and Waukesha County Holstein-

Friesian Breeders' Assn. v. Mexico ................................ 802M allen v. United States ............................................. 803

Supreme Court of the United States:Liberato et al v. Royer d al .......................................... 180

Supreme Court of Panama:Panama v. Wilbert L. Schwartzfiger ................................... 182

Arbitral award in divergence of opinion between German Government and Com-missioner of Controlled Revenue ...................................... 326

Award No. II of Arbitral Tribunal of Interpretation between Reparation Com-mission and German Government ..................................... 344

Tripartite Claims Commission (United States, Austria, and Hungary):Administrative decision No. I ......................................... 599Administrative decision No. II .................... : ................... 610

Correctional Tribunal of the Seine:Zizianoff v. Kahn and Bigelow ........................................ 811

BooK REumws ND NoTEs:Baak: Der Inhalt des Modemen V6lkerrechts .............................. 188Barnes: The Genesis of the World War ................................... 189Bonde: Trait6 n6mentaire de Droit International Public .................... 191Chirol: India .......................................................... 192Ewart: The Roots and Causes of the War ................................. 194Goodnow : China ....................................................... 195Gorg6: Une Nouvelle Sanction du Droit International ...................... 196Gutierrez: Es la Guerra Susceptible de Represion? ... . . . . . . . . . . . . . . . . . . . . . . . 197Hill: The Danish Sound Dues ............................................ 198Hoijer: La Solution Pacifique des Litiges Internationaux .................... 199Isay: Die privaten Rechte und Interessen im Friedensvertrag ................ 200Leibholz: Die Gleiehheit vor dem Gesetz .................................. 201Driault and Lh6ritier: Histoire Diplomatique de la Grace ................... 201Morey: Diplomatic Episodes ............................................. 202Olaya: La Clausula de la Nacion mas Favorecida ........................... 203Pella: La Criminalit6 Collective des Ptats ................................. 205Pena y Reyes: Lord Aberdeen, Texas y California .......................... 206Pila: Le Trafic des stup fiants ........................................... 207Puente: The Foreign Consul ............................................. 208

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CONTENTS

PAGB

Ramel: Le Moratorium de Ia Lettre do Change ............................ 210Sauser-Hall: Les Trait~s de Paix et les Droits Priv~s des Neutres ............. 211Scott: The United States and France ..................................... 213Seton-Watson: Sarajevo, A Study in the Origins of the Great War ............ 189Spaight: Aircraft and Commerce in War .................................. 214Strisower: L/Extraterritorialit6 ........................................... 214Strupp: Grundziige des Positiven V6lkerrechts ............................. 215Toynbee: Survey of International Affairs, 1924 ............................. 215Usteri: Das 6ffentlichrechtliche Schiedsgericht in der Schweizerischen Eid-

genossenschaft des 13-25 Jahrhunderts ................................ 217W aldkirch: Das V6lkerrecht ............................................. 191Wailer: Paths to World Peace ......................................... 219Willoughby: The Fundamental Concepts of Public Law ..................... 219Abbott: Historical Aspects of the Immigration Problem ..................... 381Buell: International Relations ............................................ 382Colombos: A Treatise on the Law of Prize ................................. 383Coudenhove-Kalergi: Pan-Europe ........................................ 384Driault and Lhsritier: Histoire Diplomatique de Ia Grace de 1821 il nos jours... 386Greer: The Ruhr-Lorraine Industrial Problem .............................. 387Hafter: Lehrbuch des Schweizerischen Strafrechts .......................... 388Henry-Couannier: LYitimit6 de la Guerre Asrienne ........................ 389Heyking: L'exterritorialit6 ............................................... 390Lindley: The Acquisition and Government of Backward Territory in Interna-

tional Law ......................................................... 392Manning: Diplomatic Correspondence of the United States concerning the

Independence of the Latin American Nations .......................... 394Moon: Imperialism and World Politics .................................... 396Oppenheim: International Law ........................................... 397Poupard: L'Occupation de la Ruhr et le Droit des Gens ..................... 398Radovanovitch: Le Danube et l'application du principe de ]a libert6 de la navi-

gation fluviale ...................................................... 399Saenz and Priestly: Some Mexican Problems ............................... 401Schindler: Les Trait~s de Conciliation et d'Arbitrage conclus pas ]a Suisse do

1921 1 1925 ........................................................ 403Schneider: Das V6lkerrechtliche Mandat .................................. 404Sin: Le Droit des Gens et la Chine Antique ................................ 405Sze: Geneva Opium Conferences: Statements of the Chinese Delegation ....... 407Vasconcelos and Gamio: Aspects of Mexican Civilization .................... 401Wilson: The New Democracy ............................................ 408Yoshitomi: Les Conflits Nippo-Americains et le Probl6me du Pacifique ........ 409Grotius: De Jure Belli ac Pacis, Translations by Kelsey and Ripoll ........... 628Clyde: International Rivalries in Manchuria, 1689-1922 ..................... 633Durand: Le Problhme de Tanger ......................................... 635Fenn: Origin of the Right of Fishery in Territorial Waters ................... 636Fiddes: The Dominions and Colonial Offices ............................... 637Magnus: Tabellen zum internationalen Recht .............................. 638Marburg: Staatsangeh6righeit und feindlicher Character Juristischer personen.. 638Pena y Reyes: El Congreso de Panam6 y Algunos Otros Proyectos Uni6n His-

pano-Am ericana .................................................... 639Ralston: The Law and Procedure of International Tribunals ................. 641Ram: Comparative Colonial Policy ....................................... 642

Stickney: Southern Albania in European Affairs, 1912-1923 ................. 644

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CONTENTS

PAGI!

Strupp: R1lments du Droit International Public Universel, Rurop~en et Ameri-cain ...................................................... 645

Watkins: The State as a Party Litigant ................................... 646Wehberg: Die V6lkerbundsatzung gemeinverst~ndlich erliutert ............... 647Acad~mie de Droit International: Recueil des Cours, 1925 ................... 816Alvares Correa: International Controls of Public Finances ................... 818Archangel: The American War with Russia ................................ 819Bemis: Pinckney's Treaty ............................................... 820Fabela: Los Precursores de la Diplomacia Mexicana ........................ 822Foignet: Manuel Rlmentaire de Droit International Public ................. 822Goebel: The Struggle for the Falkland Islands ............................. 823Gonsiorowski: Soci~t6 des Nations et Problsme de la Paix ................... 825Hill: The Problem of a World Court ...................................... 827Jung: l'Islam sous le Joug ............................................... 830Kiefe: La Nationalit6 des Personnes dans l'Empire Britannique .............. 830Kuhn: Les Effets de Commerce en Droit International ...................... 831Kunz: Die V6lkerrechtliche Option ....................................... 832Latan6: History of American Foreign Policy ............................... 833Makarov: Das russische Zwischenprivatrecht .............................. 834Moller: Folkeretten i Fredstid og Krigstid ................................. 835Niemeyer and Strupp: Jahrbuch des Vlkerrechts .......................... 836Norton: China and the Powers ........................................... 837Palmer: Statesmanship or W ar .......................................... 838Stewart: Consular Privileges and Immunities .............................. 840Strupp: Die vblkerrechtliche Haftung des Staates .......................... 841Temperley: Carriage of Goods by Sea Act ................................. 843Verdross: Die Verfassung der V6lkerrechtsgemeinschaft ..................... 844Vermeil: Los Origines de la Guerre ........................................ 845Willoughby: Foreign Rights and Interests in China ......................... 846Wilson: Handbook of International Law .................................. 848Zeitschrift ffir Auslandisches und Internationales Privatrecht ................. 849Notes: Wolgast, 220; Niemeyer, 220; Spiropoulos, 221; Niemeyer, Ruhland and

Spiropoulos, 222; Ostrecht, 222; Bernstein, 222; Strupp, 222; Escarra, 223;International Maritime Committee, 410; Triepel, 411; Zeitschrift fuir dasGesamte Luftrecht, 648; Freytagh-Loringhoven, 649; Rosales, 649; GrotiusAnnuaire International pour l'anne 1926, 649; International Law docu-ments, 650; Moulton and Pasvolsky, 650; International Problems and Rela-tions, 650; Louisiana State University Conference on Foreign Affairs,651; British Year Book of International Law, 1926, 651; Consolidatededition of decisions and opinions, Mixed Claims Commission U. S. andGermany, 652; Mandate for Palestine, 652; Stuart, 653; Davis, 653; Sze, 653;Grotius Society Publications, 653; Marshall, 850; Neumeyer, 850; Dennis, 851

Books Received ........................................................ 654REVIEW OP CURRENT PERIODICALS. Charles G. Fenwick ................. 224, 412, 852

DwEx ......................................................................... 858SuPPLi&mE, SEcTi N OF OFFICIAL Docu.'rrs (Separately paged and indexed.)

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BOARD OF EDITORS OF THE AMERICAN JOURNAL OFINTERNATIONAL LAW

CHANDLER P. ANDERSON, New York, N. Y.EDwnv M. BoRcHAD, Yale Law School.PHILIP MARSHALL BRoWN, Princeton University.WILLIAm C. DENmS, Washington, D. C.EDwn D. DiciNSoN, University of Michigan Law School.CHARLES G. FENWICK, Bryn Mawr College.JAMES W. GARNER, University of Illinois.DAvID JAYNE HILL, Washington, D. C.MANLEY 0. HUDsoN, Harvard Law School.CHARLES CHENEY HYDE, Columbia University.ARTH-uR K. KuH, New York, N. Y.JESSE S. REEVES, University of Michigan.ELLERY C. STOWELL, American University.LESTER H. WOOLSEY, Washington, D. C.QuiNcY WRIGHT, University of Chicago.

Honorary Editor-in-ChiefJAMES BROWN ScoTT, Washington, D. C.

Editor-in-ChiefGEORGE GRAFTON WILSON, Harvard University.

Managing Editor

GEORGE A. FiNcH, 2 Jackson Place, Washington, D. C.

The AimRCA JouRNAL oF INTERNATIONAL LAW is supplied to all members of the Amer-ican Society of International Law without extra charge, as the membership fee of five dollarsper annum includes the right to all issues of the JouRNAL published during the year for whichthe dues are paid. (Members residing in foreign countries outside the domestic postal zonepay one dollar extra per annum for foreign postage; Canada fifty cents extra.)

The annual subscription to non-members of the Society is five dollars per annum (plusthe above mentioned sums for foreign postage) and should be placed with the AmericanSociety of International Law, 2 Jackson Place, Washington, D. C.

Single copies of the JouRNAL will be supplied by the Society at $1.50 per copy.Applications for membership in the Society, correspondence with reference to the Joun-

NAL, and books for review should be sent to GEORGE A. FINCH, Recording Secretary andManaging Editor, 2 Jackson Place, Washington, D. C.

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JUDICIAL DECISIONS INVOLVING QUESTIONS OFINTERNATIONAL LAW

GENERAL CLAIMS COMMISSION-UNITED STATESAND MEXICO

L. F. H. NEER AND PAULINE E. NEER V. MEXICO (Docket No. 136)

Opinion rendered October 15, 1926In deciding claims predicated on a denial of justice, the propriety of governmental acts

should be put to the test of international standards. The treatment of an alien in orderto constitute an international delinquency, should amount to an outrage, to bad faith, towilful neglect of duty, or to an insufficiency of governmental action so far short of inter-national standards that every reasonable and impartial man would readily recognize itsinsufficiency. Whether the insufficiency proceeds from deficient execution of an intellgentlaw, or from the fact that the laws of the country do not empower the authorities to measureup to international standards, is immaterial.

Separate concurring opinion by NmrsEN, Commissioner.

1. This claim is presented by the United States against the UnitedMexican States in behalf of L. Fay H. Neer, widow, and Pauline E. Neer,daughter, of Paul Neer, who, at the time of his death, was employed assuperintendent of a mine in the vicinity of Guanacevi, State of Durango,Mexico. On November 16, 1924, about eight o'clock in the evening, whenhe and his wife were proceeding on horseback from the village of Guanacevito their home in the neighborhood, they were stopped by a number of armedmen who engaged Neer in a conversation, which Mrs. Neer did not under-stand, in the midst of which bullets seem to have been exchanged and Neerwas killed. It is alleged that, on account of this killing, his wife and daughter,American citizens, sustained damages in the sum of 8100,000.00; that theMexican authorities showed an unwarrantable lack of diligence or an un-warrantable lack of intelligent investigation in prosecuting the culprits;and that therefore the Mexican Government ought to pay to the claimantsthe said amount.

2. As to the nationality of the claim, which is challenged, the Com-mission refers to the principles expounded in paragraph 3 of its opinion anddecision rendered in the case of William A. Parker on March 31, 1926.' Onthe record as presented, the Commission decides that the claimants were bybirth, and have since remained, American nationals.

3. As to lack of diligence, or lack of intelligent investigation, on the partof the Mexican authorities, after the killing of Paul Neer had been brought totheir notice, it would seem that in the early morning after the tragedy theseauthorities might have acted in a more vigorous and effective way than theydid, and moreover, that both the special agent of the Attorney General ofDurango (in his letter of November 24, 1924), and the Governor of thatState, who proposed the removal of the judge of Guanacevi, have shared

I Printed in the JounNAL, Jan., 1927, p. 174.

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THE AMERICAN JOURNAL OF INTERNATIONAL LAW

this opinion. The Commission is mindful that the task of the local Mexicanauthorities was hampered by the fact that the only eye-witness of the murderwas unable to furnish them any helpful information. There might havebeen reason for the higher authorities of the State to intervene in the matter,as they apparently did. But in the view of the Commission there is a longway between holding that a more active and more efficient course of pro-cedure might have been pursued, on the one hand, and holding that this recordpresents such lack of diligence and of intelligent investigation as constitutesan international delinquency, on the other hand.

4. The Commission recognizes the difficulty of devising a general formulafor determining the boundary between an international delinquency of thistype and an unsatisfactory use of power included in national sovereignty.In 1910, John Bassett Moore observed that he did "not consider it to bepracticable to lay down in advance precise and unyielding formulas by whichthe question of a denial of justice may in every instance be determined"(American Journal of International Law, 1910, p. 787), and in 1923 DeLapradelle and Politis stated that the evasive and complex character (lecaractrefuyant et complexe) of a denial of justice seems to defy any definition(Recueil des Arbitrages Internationaux, II, 1923, p. 280). It is immaterialwhether the expression "denial of justice" be taken in that broad sense inwhich it applies to acts of executive and legislative authorities as well as toacts of the courts, or whether it be used in a narrow sense which confines itto acts of judicial authorities only; for in the latter case a reasoning, identicalto that which-under the name of "denial of justice "-applies to acts ofthe judiciary, will apply-be it under a different name-to unwarrantedacts of executive and legislative authorities. Without attempting to an-nounce a precise formula, it is in the opinion of the Commission possible togo a little further than the authors quoted, and to hold, (first) that the pro-priety of governmental acts should be put to the test of international stand-ards, and (second) that the treatment of an alien, in order to constitute aninternational delinquency, should amount to an outrage, to bad faith, towilful neglect of duty, or to an insufficiency of governmental action so farshort of international standards that every reasonable and impartial manwould readily recognize its insufficiency. Whether the insufficiencyproceeds from deficient execution of an intelligent law, or from the faotthat the laws of the country do not empower the authorities to measure upto international standards, is immaterial.

5. It is not for an international tribunal such as this Commission to decide,whether another course of procedure taken by the local authorities atGuanacevi might have been more effective. On the contrary, the grounds ofliability limit its inquiry to whether there is convincing evidence either(1) that the authorities administering the Mexican law acted in an out-rageous way, in bad faith, in wilful neglect of their duties, or in a pronounceddegree to improper action, or (2) that Mexican law rendered it impossible


XUDICIAL DECISIONS

for them properly to fulfil their task. No attempt is made to establish thesecond point. The first point is negatived by the full record of police andjudicial authorities produced by the Mexican Agent, though the Commissionfeels bound to state once more that in its opinion better methods might havebeen used. From this record it appears that the local authorities, on thevery night of the tragedy, November 16, went to the spot where the killingtook place and examined the corpse; that on November 17, the judge pro-ceeded to the examination of some witnesses, among them Mrs. Neer; thatinvestigations were continued for several days; that arrests were made ofpersons suspected; and that they were subsequently released for want ofevidence. The American Agency in rebuttal offers nothing but affidavitsstating individual impressions or suppositions. In the light of the entirerecord in this case the Commission is not prepared to hold that the Mexicanauthorities have shown such lack of diligence or such lack of intelligent in-vestigation in apprehending and punishing the culprits as would renderMexico liable before this Commission.

Decision

6. The Commission accordingly decides that the claim of the UnitedStates is disallowed.

Done at Washington, D. C., this 15th day of October, 1926.C. vAN VOLLENHOVEN,

Presiding Commissioner.

G. FERN1NDEZ MACGREGOR,Commissioner.

SEPARATE OPINION

While concurring in the decision disallowing this claim, I find myselfunable to concur fully in the statement of reasons upon which the other twomembers of the Commission think the award should be grounded. Becauseof that fact I deem it to be advisable, having in mind particularly the im-portance of the rules and principles of law involved in the case, to statemy own views somewhat in detail.

This claim is presented by the United States against the United MexicanStates in behalf of L. Fay H. Neer, widow, and Pauline E. Neer, daughter,of Paul Neer, a native American citizen, who was killed in the vicinity of thevillage of Guanacevi, State of Durango, Mexico, on November 16, 1924.The claim is grounded on an assertion of a denial of justice growing out of thefailure of Mexican authorities to take adequate measures to apprehend andpunish the persons who killed Neer. An indemnity in the sum of $100,000.00is asked in behalf of the claimants as heirs of the deceased.

There is no dispute regarding the material facts in relation to the killingof Neer in so far as they are disclosed by evidence. Neer, at the time of hisdeath, was employed as superintendent of a mine at Guanacevi. At about



eight o'clock in the evening of the day on which he was killed, he and hiswife were proceeding on horseback from Guanacevi to their home aboutthree miles distant from the village. When they had gone approximatelya third of the distance they were stopped by a number of men who engagedNeer in conversation, which Mrs. Neer did not understand. In the midstof this conversation Neer was shot and killed. An examination of the corpserevealed that three bullets had penetrated his body. Mrs. Neer was ableto furnish but very little information of value in identifying the men by whomher husband was accosted.

Some question is raised in the answer of the United Mexican States withrespect to the right of the United States to maintain the claim in behalf ofthe claimants. However, it is merely stated in the answer that "theAmerican nationality of the claimants and of the deceased Paul Neer is notduly proved in the memorial," and in the light of what I consider to beentirely convincing evidence produced on this point I have no doubt asto the right of the United States to prefer this claim in behalf of the claimantsas American heirs of a deceased American citizen.

Among the annexes accompanying the memorial of the United States arecertain affidavits. Mrs. Neer, in an affidavit made by her, states that "theMexican Government did not make an adequate or thorough investigationof the facts connected with the murder of said Paul Neer and failed and neg-lected to take any adequate measures to apprehend and punish the murderersof said Paul Neer" (pp. 23-24). Herman Dauth, a resident of Guanaceviat the time of Neer's death, states in an affidavit that "to his personalknowledge no effort was made by the local authorities to apprehend themurderers and assailants, either the day following the murder or the daythereafter, but that on the third day Indian trailers were sent to the sceneof the murder and discovered the exploded shells behind the stone walls."The affiant further expresses the belief that had prompt and proper methodsbeen employed by the local authorities, the identity of the murderers of thesaid Paul Neer could have been ascertained (p. 27). Another affiant, JohnN. Brooks, Jr., an employee in general charge of the Guanacevi Unit of theCia. Minera de Penoles, S. A., situated near Guanacevi, swears that "someinquiry and search was made by the authorities of the State of Durango toascertain who were the murderers of said Paul Neer, but to his knowledgeno reward was ever offered for their apprehension and no special pains orcare were taken by the authorities to apprehend and punish the murderers"(p. 29).

To refute the charge that Mexican authorities failed to take propermeasures to apprehend and bring to justice the persons who killed Neer,the Mexican Government filed with its answer a record of proceedings in-stituted and carried on before the Judge of First Instance of the JudicialDistrict of Guanacev. From this record it appears that the judge, onNovember 17, the day following the killing of Neer, ordered an investigation;


JUDICIAL DECISIONS

that on the same day members of the court went to the place where thekilling took place; that they examined the corpse which had been removedto a near-by residence, and that they then proceeded to the examination ofwitnesses, including Mrs. Neer. It further appears that the examination ofwitnesses was continued for several days; that arrests were made of certainpersons suspected of the killing of Neer; and that they were subsequentlyreleased for want of evidence implicating them in the deed.

The Agent of Mexico, in his argument before the Commission, emphasizedthat the Mexican authorities had complied with the forms of Mexican law inthe investigation of the killing of Neer, and he asserted that the efficacy ofthe law had been proved in the light of experience.

The sovereign rights of a nation with regard to the enactment and execu-tion of laws of this character within its jurisdiction is of course well under-stood. Vattel, in asserting a general principle in relation to these rights,adds some observations as to the respect that should be accorded to themeasures employed by nations in the exercise of such rights. He says:

The sovereignty united to the domain establishes the jurisdiction ofthe nation in her territories, or the country that belongs to her. It is herprovince, or that of her sovereign, to exercise justice in all the placesunder her jurisdiction, to take cognizance of the crimes committed, andthe differences that arise in the country.

Other nations ought to respect this right. And, as the administrationof justice necessarily requires that every definitive sentence, regularlypronounced, be esteemed just, and executed as such,-when once acause in which foreigners are interested has been decided in form, thesovereign of the defendants cannot hear their complaints. To under-take to examine the justice of a definitive sentence is an attack on thejurisdiction of him who has passed it. The prince, therefore, oughtnot to interfere in the causes of his subjects in foreign countries, and grantthem his protection, excepting in cases where justice is refused, orpalpable and evident injustice done, or rules and forms openly violated,or, finally, an odious distinction made, to the prejudice of his subjects,or of foreigners in general.-Law of Nations. (Chitty's edit. 1869,Book II, pp. 165-166.)

Although there is this clear recognition in international law of the scopeof sovereign rights relating to matters that are subject of domestic regulation,it is also clear that the domestic law and the measures employed to executeit must conform to the requirements of the supreme law of members of thefamily of nations which is international law, and that any failure to meetthose requirements is a failure to perform a legal duty, and as such, an inter-national delinquency. Hence a strict conformity by authorities of a govern-ment with its domestic law is not necessarily conclusive evidence of theobservance of legal duties imposed by international law, although it may beimportant evidence on that point.

The functions exercised by the judge at Guanacevi in investigating thedeath of the American citizen, Neer, and in taking steps to apprehend the


THE AMERICAN JOURNAL OF INTERNATIOXAL LAW

persons who shot him were evidently not judicial acts in the sense in whichthe term judicial is generally used. The duties the judge discharged may besaid to be in a measure those of a police magistrate. However, the precisecharacter of acts of the judge is not a material point. The claim preferred bythe United States is predicated on a denial of justice. I think it is usefuland proper to apply the term denial of justice in a broader sense than thatof a designation solely of a wrongful act on the part of the judicial branch ofthe government. I consider that a denial of justice may, broadly speaking,be properly regarded as the general ground of diplomatic intervention. Thisview, which has often been expressed, was well stated in the opinion ren-dered by Sir Henry Strong and Mr. Don M. Dickinson in the so-called"El Triunfo" case in which it was said:

It is not the denial of justice by the courts alone which may form thebasis for reclamation against a nation, according to the rules of inter-national law.

'There can be no doubt"-says Halleck-"that a State is responsiblefor the acts of its rulers, whether they belong to the legislative, executive,or judicial department of the government, so far as the acts are donein their official capacity." Ralston, International Arbitral Law andProcedure, p. 51; Foreign Relations of the United States, 1902, p. 870.

The controversial questions that arise between nations from time totime with respect to complaints of denial of justice are numerous and varied.But it is probably not so very difficult to formulate a practicable and soundstandard by which to test the propriety of intervention or the right of anation to claim pecuniary reparation in any given case.

It may perhaps be said with a reasonable degree of precision that thepropriety of governmental acts should be determined according to ordinarystandards of civilization, even though standards differ considerably amongmembers of the family of nations, equal under the law. And it seems to bepossible to indicate with still further precision the broad, general ground uponwhich a demand for redress based on a denial of justice may be made by onenation upon another. It has been said that such a demand is justified whenthe treatment of an alien reveals an obvious error in the administration ofjustice, or fraud, or a clear outrage. The thought is expressed to some extentin an opinion given by Commissioner Bertinatti in the Medina case underthe convention of July 2, 1860, between Costa Rica and the United Statesin which it was said:

It being against the independence as well as the dignity of a nationthat a foreign government may interfere either with its legislation orthe appointment of magistrates for the administration of justice, theconsequence is that in the protection of its subjects residing abroad agovernment, in all matters depending upon the judiciary power, mustconfine itself to secure for them free access to the local tribunals, besidesan equality of treatment with the native.Q according to the conventionallaw established by treaties.


JUJDICIAL DECISIONS

Only a formal denial of justice, the dishonesty or prevaricatio of ajudge legally proved, "the case of torture, the denial of the means ofdefense at the trial, or gross injustice, in re minime dubia," (see opinionof Phillimore in the controversy between the governments of GreatBritain and Paraguay) may justify a government in extending furtherits protection. Moore, International Arbitrations, Vol. 3, p. 2317.

There may of course be honest differences of opinion with respect to thecharacter of governmental acts, but it seems to be clear that an internationaltribunal is guided by a reasonably certain and useful standard if it adheresto the position that in any given case involving an allegation of a denialof justice it can award damages only on the basis of convincing evidence ofa pronounced degree of improper governmental administration.

In the case before the Commission no charge is made of a failure of anyduty by Mexican authorities to prevent the commission of an offense.Indemnity is claimed because of the alleged neglect of the authorities totake proper measures to apprehend and punish the persons who killed Neer.It has been repeatedly asserted by international tribunals that a failure ofauthorities to take adequate measures of this kind renders a nation liable torespond in damages. Thus, Mr. Findlay, in the opinion written by himin the case of Amelia de Brissot, under the convention of December 5, 1885,between the United States and Venezuela, said:

It would be wholly unwarranted, therefore, to hold Venezuelaresponsible for not anticipating and preventing an outbreak, of which thepersons most interested in knowing and the very actors on the spot hadno knowledge. A state, however, is liable for wrongs inflicted upon thecitizens of another state in any case where the offender is permitted togo at large without being called to account or punished for his offense,or some honest endeavor made for his arrest and punishment.-Moore,International Arbitrations, Vol. 3, p. 2969.

To the same effect Commissioner Little in the opinion written by him inthat case said:

Venezuela's responsibility and liability in the matter are to be deter-mined and measured by her conduct in ascertaining and bringing tojustice the guilty parties. If she did all that could reasonably berequired in that behalf, she is to be held blameless; otherwise not.Without entering upon a discussion of the investigation instituted andconducted by her, it seems there was fault in not causing the leaders,at least, of this lawless band to be arrested. It was notorious who theywere. It does not seem that any attempt was made before any localauthority to bring them or any of the band to justice. Had there beena well-directed effort of that kind, or had the government's investigationdisclosed their innocence, and failed to discover those actually guilty,its responsibility would perhaps have ended, assuming the investigation,as I do, was a fair and just one. Op. cit., p. 2968.

See also the Poggioli Case before the Italian-Venezuelan Commission of1903, Ralston, Report, p. 847, 869; Bovallins and Hedlund Cases, ibid., p.



952; case of Ruden & Company under the Convention of July 12, 1863,between the United States and Peru, Moore, International Arbitrations,Vol. 2, p. 1653.

It was argued in behalf of the United States that there was an unwarranteddelay in steps taken to apprehend the persons who killed Neer; that theproceedings of investigation were of such a public character as to put personsimplicated in the crime on guard and to enable them to escape; that detec-tives might have been employed to apprehend the offenders. I am of theopinion that better methods might have been used by the Mexican author-ities, and that the action taken by them may well be adversely criticized.

But in the light of the entire record in the case before us I am not preparedto decide that a charge of a denial of justice can be maintained against theGovernment of Mexico conformably to the principles which according tomy views as above expressed should govern the action of the Commission.

I accordingly concur in the decision that the claim of the United Statesis disallowed.

FRED K. NIELSEN,Commissioner.

J. W. AND N. L. SwiruEY v. MExICo (Docket No. 130)

Opinion rendered November 16, 1926

Denial of justice-Laches by judicial authorities.Damages awarded for the unlawful killing of an American citizen by Mexican rural

officers and the failure of the Mexican authorities to bring them to trial.

Counsel: United States, Stanley H. Udy; Mexico, Oscar Rabasa.1. This claim is presented by the United States against the United

Mexican States in behalf of J. W. Swinney and N. L. Swinney, parents ofWalter G. Swinney, a young American citizen, who in the afternoon ofSunday, February 5, 1922, while engaged in a trapping expedition on theIRio Bravo or Rio Grande del Norte, at a point not remote from NuevoLaredo, Tamaulipas, Mexico, was shot from the Mexican bank by twoarmed Mexicans and who died the next morning in the hospital at Laredo,Texas, U. S. A. One of these two Mexicans, Urbano Solis, a rural judge inthe service of the municipality of Nuevo Laredo, was arrested on or aboutFebruary 5, 1922; the other one, Jos6 Maria Cruz, a rural police of the samemunicipality, was arrested on or about February 7, 1922, released beforethe end of February, but re-arrested on March 8, 1922, at the instance of theAmerican consul; both of them were finally discharged and released onNovember 15, 1922, without any trial being held. It is alleged that thedeath of said Walter Swinney caused to his parents (the claimants),American nationals, damages in the sum of $25,000; that the Mexicanauthorities showed an unwarrantable neglect and indifference in investiga-ting the case and prosecuting the culprits; and that on account of this


JUDICIAL DECISIONS

unlawful killing and denial of justice Mexico ought to pay to the claimantsthe said amount with interest thereon.

2. A challenge of the nationality of the claim has been withdrawn duringthe oral hearing of the case.

3. The occurrence was as follows: Solis had supervision over the river inregard to smuggling endeavors, and on the very day of the occurrence theattention of him and his colleagues had by their superiors been drawn to thefact that rumors were being heard about probable attempts of revolutionariesto cross near the places under Solis' supervision. His part of the river wasone of those where crossing the river with goods and using either the Mexicanor the American bank as an entry port was forbidden. In the afternoon ofthat Sunday Solis accidentally saw the boats of Swinney and his older com-panion McCampbell on the river, and wondering whether their business waslawful, went to take his helper Cruz from his house and go to the spot.When about 4 p. m. they discovered Swinney peaceably floating downtheriver, in a boat which in reality contained nothing besides himself and hisfirearms, they contend that they took him for a man who was there incontravention of the laws which it was especially their duty to enforce; theirsuspicion was strengthened by the fact that Solis, on his previous accidentaldiscovery of the two boats, had thought the other boat loaded. This firstcontention is not disproven by the evidence; neither is the contention thatSinney refused to obey Solis' summons to come nearer in order to give thenecessary explanations, and instead of doing so rowed to the opposite bank.Theoretically it might be doubted whether Swinney recognized the twoMexicans as river guards (custom guards) or similar officials; but anyone inthese parts maybe supposed to knowthat the river is being carefully watchedby armed officials and that the presence on the river bank of officials seekinginformation of occurrences on and near the river is on both sides extremelylikely. The second allegation of the two officials, however, is that, afterSwinney disobeyed the summons, Solis shot in the water to frighten him,whereupon Swinney shot at them three times and a second shooting on theirpart followed which was in self-defense and mortally wounded him, By thattime Swinney was near the American bank and was taken out of the waterby his companion; the rural judge Solis went at once to the competentauthority at Nuevo Laredo, to give a full account of what had happenedand place himself at the hands of justice.

4. The Commission, though mindful of the special task of Solis and of thespecial instructions given him quite recently, is far from satisfied that theshooting which ended in this tragedy was not reckless. There is every reasonto doubt whether Swinney in his boat shot at the Mexican officials. Therecord mentions the inspection of Swinney's pistol, first by the witnessRodriguez and afterwards by the American consul, vice-consul and under-taker, disclosing that it could not have been used. A statement purportingto have been made by McCampbell to the effect that Swinney fired from the



American bank, after he had been wounded but not before that time, occursin the consul's report of February 9, 1922, but does not appear in Me-Campbell's own affidavit of September 28, 1923. It is not clear from therecord why Swinney looked like a smuggler or a revolutionary at that timeand place, and how the Mexican officials could explain and account for theiract of shooting under these circumstances, even when they considered himcommitting an unlawful act in crossing from one bank to another (a factthey did not see). Human life in these parts, on both sides, seems not to beappraised so highly as international standards prescribe. In the light(among other things) of the correspondence between the Governments ofGreat Britain and the United States relative to the reckless killing in 1914 onthe Canadian border of the United States of one Walter Smith, who, whileengaged in unlawfully shooting ducks, did not obey a summons of soldiersof the Canadian militia but rowed away (Foreign Relations, 1915, pp. 414-423), the Commission holds that this killing of Swinney has been an unlawfulact of Mexican officials.

5. As to investigation of the case reported to them by Solis himself, thereis from the record no reasonable doubt that the Mexican judicial authoritiesacted with a laches which must strike painfully not only those interested inthe deceased men, but any one who learns what happened. If the Americanconsul had not been active for several months and if, as a consequence thereof,the Mexican authorities had not at last gathered some evidence on both sides,it is difficult to see how they would have obtained other information than thestatements made by their own men. It is alleged and not negatived, thatthe Mexican authorities during the first weeks only heard the two Mexicanofficials involved in the tragedy, Solis and Cruz; that they made no endeavorto hear the two American eye-witnesses-Swinney's companion PhilipMcCampbell, who had been present at the event, and one Ignacio Rodriguez,who had seen the dying man (whom he did not know before), had talkedwith him and had helped to have him taken to the hospital; that theseauthorities only examined the eye-witnesses on the strong and repeatedinsistence both of the American consul at Nuevo Laredo and the Americanembassy at Mexico City, and only as late as March 17, 1922 (McCampbell),and May 15, 1922 (Rodriguez); that they re-arrested Cruz on the same in-sistence; that the public prosecutor at Nuevo Laredo did not act (and thennegatively) until July 5, 1922, nor the Attorney General at Ciudad Victoria,Tamaulipas, until November 14, 1922. A request from the American em-bassy to the Mexican Government to have the case brought to trial (May16, 1923) had no effect. In a case so tragic as the killing of an innocentyoung foreigner, granted even that the officials who killed him may haveconsidered their act justified, these facts should have been either negativedor explained.

6. As to the discharge and release of the guilty parties, distinction oughtto be made between the action taken by the public prosecutor at Nuevo


=UICIAM DECISIONS

Laredo and that of the Attorney General of the State. Once evidencegathered on the indefatigable insistence of the American consul, the prose-cutor at Nuevo Laredo stated that there was reason to assume that the offi-cials acted in what they believed to be the discharge of their official duty,whereas with respect to their claim of self-defense no positive conclusioncould be reached. Instead of leaving the difficult decision on these pointsto an impartial tribunal, the prosecutor at least did not use the unprovenself-defense as an argument, but based his decree of discharge and releaseexclusively on Article 34, clauses XIV and XV, of the Penal Code (relatingto acts of officials in the exercise of their official capacity), thereby showingthat he did not feel sufficiently convinced of their having acted in self-defense. The Attorney General, on the contrary, in confirming the firstdecree, discharged Solis on account of clause VIII of said article, whichexclusively relates to self-defense. If the Mexicans in mortally woundingSwinney acted in self-defense, the case would have been different from theirshooting a man who only did not approach, but rowed away; in his decisionthe Attorney General merely discarded the statements opposing those ofhis national officials, who at the same time were the accused. The Commis-sion has great difficulty to understand why the royal road of an open trialhas been avoided.

7. The respondent government has not denied that, under the conventionof September 8, 1923, acts of authorities of Tamaulipas may give rise toclaims against the Government of Mexico. The Commission is of the opin-ion that claims may be predicated on such acts.

8. The Commission considering among other things the financial supportthe deceased man gave the claimants, their prospects of life and the characterof the delinquency involved holds that the claimants have suffered damagesto the extent of $7,000 because of the killing of their son by Mexican au-thorities. For allowing interest on this amount the Commission finds noground.

Decision

9. The Commission accordingly decides that the Government of the UnitedMexican States is obligated to pay to the Government of the United Statesof America $7,000 (seven thousand dollars), without interest, in behalf ofJesse Walter Swinney and Nancy Louisa Swinney.

Done at Washington, D. C., this 16th day of November, 1926.C. VAN VOLLENHOVEN,

Presiding Commissioner.G. FERNkiNEZ MACGREGOR,

Commissioner.

SEPARATE OPINION

I concur in the award of $7,000.00 without concurring entirely in the



grounds for the award stated in the opinion signed by the other two Com-missioners.

FRED K. NIELSEN,Commissioner.

D. GUERRERO VDA DE FALC6N v. UNITED STATES (Docket No. 278)

Opinion rendered November 16, 1926Damages awarded for death by wrongful act.Although the American soldiers may have believed themselves justified in using firearms

to prevent smuggling or in returning fire from the Mexican side, their action in directingfire against naked and defenseless Mexicans in the river was in disregard of American mili-tary regulations which forebade the firing on unarmed persons suspected of smuggling orcrossing the river in places where passage was not authorized. Award apart from the failureof the American authorities to bring the soldiers to trial.

Counsel: United States, Charles Kerr; Mexico, Eduardo Suarez.1. This claim was filed by the United Mexican States against the United

States of America in behalf of Dolores Guerrero, widow of Gregorio Falc6n,and of Bartolo, Apolonio, Domingo, and M6nica Falc6n, children of thedeceased Falc6n, a Mexican citizen, who, on May 5, 1919, at about 10.30a. in., was wounded by bullets fired by two American soldiers from theAmericaA side of the Rio Grande at a point near the ranch called LasBarreras, while he was, it is alleged in the memorial, bathing together withanother Mexican named F6lix Villarreal. Falc6n died in the afternoon of-the same day. American military and civil authorities made an investiga-tion of the occurrences connected with the killing of Falc6n. The soldierswere not brought to trial, but they were admonished for having fired onunarmed persons, although it was believed that they did so without intentionto hit. It is alleged that the death of Gregorio Falc6n caused his widow andhis children, Mexican citizens, damages in the amount of 18,518.40 pesos,Mexican currency; that the American authorities improperly failed to bringthe guilty persons to trial, and that on account of this wrongful death and adenial of justice, the United States should pay an indemnity in the afore-mentioned sum together with interest from May 5, 1919, to the time ofpayment. The record discloses the following facts: Sergeants John Smith-and John Floyd of the Fourth Cavalry of the United States Army had beendirected, on May 5, 1919, to patrol the river in the locality where the shootingoccurred with the object of preventing smuggling and other transgressions ofthe law. Sergeant Smith, during the course of the investigation conductedby the military authorities, testified that while the two soldiers were makingan inspection on the banks of the river they saw through long distance fieldglasses a naked man who was swimming towards the Mexican side and alsoseveral mounted men on the Mexican shore. Evidence on this point is notentirely clear, Sergeant Floyd stated that, "About a half mile this side of thatplace (Barreras) we noticed a bunch of men trying to cross the river." Bothsoldiers also mentioned three men who were in the river naked, while evi-


JUDICIAL DECISIONS

dence produced by the Mexican Government refers to but two men. Itappears that the soldiers, believing that the men in the river were engaged insmuggling, approached them and directed them to halt. Falc6n and Vil-larreal did not obey the order whereupon Sergeant Smith fired a shot in theair to cause them to stop. The soldiers testify that they were thereuponimmediately fired on from the Mexican side by mounted men; that they(the soldiers) retreated, dismounted and returned to answer the fire in self-defense, and also directed some shots at the men who were in the water.It further appears that about fifty shots were exchanged in this manner whileFalc6n and Villarreal were approaching the Mexican shore, and that Falc6nhad to be assisted out of the water by Villarreal, he having been wounded byone of the bullets fired from the American side. While the two soldiersasserted that the men in the river were towing some floating cases, Falc6nand Villarreal deny this and there is no other evidence bearing on the point.It also appears uncertain whether the two Mexicans had been in the Ameri-can side of the river. The only evidence upon this point is the statement ofJuan 'Iufiiz a man who was on the American side at the time the occur-rences in question took place, and who stated that "he had heard that twomen had passed his ranch, coming from the vicinity of Mission, and that theyhad crossed the river." This same Mufilz, testified that he had heard shots,"but that he did not know who shot first," a statement which might beinterpreted in the sense that there were shots fired from both sides of theriver, or that there were shots only from the American side and that MuwIzdid not notice which of the two American soldiers had fired first.

2. Mexican authorities also investigated the occurrences in question andbrought the results of their investigation to the notice of the Mexican Consulat Rio Grande, who, on May 12, 1919, communicated them to the Am-bassador of Mexico in the United States, who brought them to the notice ofthe Department of State. The American military authorities, withoutbringing Smith and Floyd to trial, declared them innocent of crime on theground that they had acted in the discharge of their duty in attempting toprevent smuggling, and that even if they had made an error in firing thefirst shot in the air, it was natural that they should return the fire ofthe Mexicans in order to protect themselves from shots being fired from theMexican side.

3. Even though it be assumed that Falc6n and Villarreal were engaged insmuggling, and that American soldiers were fired upon from the Mexicanside, the Commission must consider the death of Falc6n to be wrongful.It appears from the record that American military regulations forbade thefiring on unarmed persons suspected of smuggling or crossing the river inplaces where passage was not authorized. (Bulletin #4 of February 11,1919.) The soldiers may have believed themselves justified in using fire-arms to prevent smuggling or in returning a fire from the Mexican side.However, it appears they disregarded American military regulations which



were evidently intended to prevent such unhappy occurrences as those,underlying this claim. And according to the testimony of Sergeant Smith,they directed fire against naked and defenseless Mexicans who were in theriver thereby causing the death of Falc6n.

4. In view of the results of the investigation made by American civilianauthorities it seems to the Commission to be somewhat odd that the soldiersshould not have been brought to trial. Apart from this point, however, theCommission is of the opinion that the killing of Falc6n was a wrongful actfor which damages may be assessed in the amount of $7,000.00 withoutinterest.

Decision

5. The Commission therefore decides that the Government of the UnitedStates of America must pay to the Government of the United MexicanStates the sum of $7,000.00 (seven thousand dollars) without interest, onbehalf of Dolores Guerrero, widow of Gregorio Falc6n and Bartolo, Apolonio,.Domingo and M6nica Falc6n, children of the deceased Falc6n.


Presiding Commissioner.FRED K. NIELSEN,

Commissioner.G. F ERNXNDEZ MACGREGOR,

Commissioner.

FRANCISCO QuiNTANiLLA et aZ. v. UNITED STATES (Docket No. 532)


In international law a government is obligated to account for a foreigner who is taken into,custody by a state official. It can not escape liability for his unlawful treatment by ignoring-what happens to him. This duty to account for a man in governmental custody is notmodified by the fact that the custodian himself is accused of having killed his prisoner andas an accused can not be made to testify against himself.

Counsel: United States, C. L. Bouv6, Agent; Mexico, Eduardo Sugrez.1. This claim is presented by the United Mexican States against the

United States in behalf of F. Quintanilla and M. I. Perez de Quintanilla,Mexican nationals, father and mother of Alejo Quintanilla, a young man,who was killed on or about July 16, 1922, not far from Edinburg, Hidalgo,County, Texas, U. S. A. On July 15, 1922, about 5 p. m. said Alejo Quin-tanilla in a lonely spot had lassoed a girl of fourteen years, Agnes Casey, who,was on horseback, and thrown her from the horse; she screamed, and theyoung Mexican fled. She told the occurrence to her father, Tom Casey, withwhom Quintanilla had been employed some time before; the father the nextmorning went to lodge his complaint with the authorities, first to Edinburg(the county seat) where he did not find the sheriff, and then to Donna where


JUDICIAL DECISIONS

he found the deputy sheriff, one Sam A. Bernard. According to the record,this deputy sheriff with three other men, whose names are not mentioned,went to Quintanilla's house, took him from it, and the deputy sheriff withone Walter Weaver placed him in a motor car and drove with him, first toCasey's house, where they put on a new tire, and then in the direction ofEdinburg to take him to the county jail. On July 18, 1922, about noon,Quintanilla's corpse was found near the side of this road, some three milesfrom Edinburg, traces showing that he had been taken there in a motor car.Bernard and Weaver were accused by the Mexican Consul at Hidalgo,Texas, and were accordingly arrested, but released on bail; Bernard's ap-pointment as a deputy sheriff was cancelled by his sheriff on July 22, 1922.The public prosecutor made investigations and submitted the case to thegrand jury, but the grand jury deferred it from 1922 to 1923, from 1923 to1924, and never took action upon it. The memorial alleges that the killinghas caused to Quintanilla's parents losses and damages to the amount of49,932.00 Mexican gold pesos, and that as these damages originated in actsof an official of the State of Texas, combined with a denial of justice, theUnited States is liable for them.

2. It appears from the record that Quintanilla was taken into custody onJuly 16, 1922, by a deputy sheriff of the State of Texas, to put him at thedisposal of the judicial officers; it is left uncertain whether this official wasprovided with any authorization to take Quintanilla from his house andarrest him. The United States Government never reported what thisdeputy sheriff did with Quintanilla after he had taken him under custody.The young man apparently never reached the county jail. The deputysheriff may have changed his mind and set him at liberty, and after thatQuintanilla may have been murdered by an unknown person. An enemy ofQuintanilla may have come up and taken him from the car. The companionof the deputy sheriff who was not an official may have killed Quintanilla;or the two custodians may have acted in self-defense. The United StatesGovernment has been silent on all of this. The only thing the recordclearly shows is that Quintanilla was taken into custody by a State official,and that he never was delivered to any jail. The first question before thisCommission, therefore, is whether under international law these circum-stances present a case for which a government must be held liable.

3. The Commission does not hesitate to answer in the affirmative. Themost notable parallel in international law relates to war prisoners, hostages,and interned members of a belligerent army and navy. It would be goingtoo far to pretend that a government taking into its custody either war pris-oners or hostages or interned soldiers is responsible for everything whichmay happen to them; but there can be no reasonable doubt that it may becalled to account for them, that it is obligated to account for them, and thatunder international law it can not exculpate itself by merely stating that ittook these men into custody and that thereafter they have disappeared



without leaving any trace. The fague Conventions of 1907 are silent as t6hostages; but as to war prisoners and persons assimilated to them (detainednewspaper correspondents, etc.), they contain explicit provisions for theapplication of this principle (Articles 13, 14, and 16 of the fourth Eagueconvention of 1907); and the provisions of the fifth and thirteenth conven-tions of 1907 concerning the treatment of interned army and navy menwould be meaningless if the respective governments were not obligated toaccount for the men they took into their custody. The case before thisCommission is analogous. A foreigner is taken into custody by a Stateofficial. It would go too far to hold that the government is liable for every-thing which may befall him. But it has to account for him. The govern-ment can be held liable if it is proven that it has treated him cruelly, harshly,unlawfully; so much the more it is liable if it can say only that it took himinto custody-either in jail, or in some other place and form-and that itignores what happened to him.

4. The question then arises whether this duty to account for a man ingovernmental custody is modified by the fact that the custodian himself isaccused of having killed his prisoner and, as an accused, can not be made totestify against himself. The two things clearly are separate. If the gov-ernment is obligated to state what happened to the man in its custody, itsofficials are bound to inform their governments. It might be that the cus-todians themselves perish in a calamity together with the men in theircustody, and therefore can not furnish any information. But if they arealive, and are silent, the government has to bear the consequences. TheCommission holds, therefore, that under international law and underArticle I of the Convention of September 8, 1923, the respondent govern-ment is liable for the damages originating in this act of a State official andresulting in injustice.

5. It is useless to inquire whether, apart from this liability, the UnitedStates might have been held responsible for a denial of justice in this case.The Commission confines itself to stating that nothing in the record showsthat the prosecuting officer has ascertained who were the four men that tookQuintanilla from his house, what were their motives for so doing, and whatwas to be learned from an inspection of the car in which Quintanilla wastransported. If the prosecuting officer had information as to these points,the secrecy of the investigations before the grand jury can not explain thesilence of the American Agency on all of these points.

6. The respondent government has not denied that, under the conventionof September 8, 1923, acts of authorities of Texas may give rise to claimsagainst the Government of the United States. The Commission is of theopinion that claims can be predicated on such acts.

7. Considering that satisfaction is due to the parents of Quintanilla for theloss suffered by the international delinquency committed, and taking intoaccount that the record does not show how much of his earnings went to his


JUDICIAL DECISIONS

parents, the Commission, on the data presented in the memorial, considersthese damages not to exceed an amount of S2,000, without interest.

Decision

8. The Commission accordingly decides that the Government of theUnited States of America is obligated to pay to the Government of theUnited Mexican States $2,000 (two thousand dollars) in behalf of FranciscoQuintanilla and Maria Ines Perez de Quintanilla, without interest.


Presiding Commissioner.G. FERNANDEZ MACGREGOR,

Commissioner.SEPARATE OPINION

I concur in the award of S2,000.00 without concurring in the grounds forthe award stated in the opinion signed by the other two Commissioners.

FRED K. NIELSEN,

Commissioner.

Tomts H. YoutmiLs v. MEXIco (Docket No. 271)


Protection of foreigners from mob violence--Responsibility for the acts of soldiers.The action of troops in participating in the murder of foreigners imposes a direct responsi-

bility on the government for lack of diligence in the punishment of the persons implicated inthe crime.

The well-recognized rule of international law that a government is not responsible formalicious acts of soldiers committed in their private capacity does not apply when it is clearthat at the time of the commission of those acts the men were on duty and under the imme-diate supervision and in the presence of a commanding superior. Soldiers inflicting per-sonal injuries or committing wanton destruction or looting always act in disobedience ofsome rules laid down by superior authority. There could be no liability whatever for suchmisdeeds if the view were taken that any acts committed by soldiers in contravention ofinstructions must always be considered as personal acts.

Counsel: United States, C. L. Bouv6, Agent; Mexico, Oscar Rabasa.1. Claim for damages in the amount of $50,000.00 is made in this case by

the United States of America against the United Mexican States in behalf ofThomas H. Youmans, the son of Henry Youmans, an American citizen, who,together with two other Americans, John A. Connelly and George Arnold,was killed at the hands of a mob on March 14, 1880, at Angangueo, State ofMichoacdn, Mexico. The occurrences giving rise to the claim as stated inthe memorial are substantially as follows:

2. At the time when the killing took place, Connelly and Youmans wereemployed by Justin Arnold and Clinton Stephens, American citizens, whowere engaged under a contract with a British corporation in driving atunnel known as the San Eilario Tunnel, in the town of Angangueo, a placehaving a population of approximately 7,000 people. The work was being



done by Mexican laborers resident in the town under the supervision of theAmericans. On the day when these men were killed, Connelly, who wasManaging Engineer in the construction of the tunnel at Angangueo, had acontroversy with a laborer, Cayetano Medina by name, over a trifling sumof about twelve cents which the laborer insisted was due to him as wages.Connelly, considering the conduct of the laborer to be offensive, ejected thelatter from the house in which Connelly lived and to which Medina had-come to discuss the matter. Subsequently Medina, who was joined byseveral companions, began to throw stones at Connelly while the latter wassitting in front of his house and approached the American with a drawnmachete. Connelly, with a view to frightening his assailant, fired shots intothe air from a revolver. The American having withdrawn into the house,Medina attempted to enter, and his companions followed. Connelly there-upon fired at Medina with a shot-gun and wounded him in the legs. Soonthe house was surrounded by a threatening mob which increased until itnumbered about a thousand people. Connelly, Youmans and Arnold,realizing the seriousness of their situation, prepared to defend themselvesagainst the mob. Connelly's employer, Clinton Stephens, on hearing shotswent to the house and learned from Connelly what had happened. UponStephens' advice, Connelly undertook to surrender himself to the localauthorities, but was driven back into the house by the mob. The attackagainst Connelly when he endeavored to surrender to police authorities wasled by Pedro Mondrag6n, a person styled the "Jefe de Manzana," withwhom Connelly had been on friendly terms. Stephens, followed by a partof the mob, proceeded to the Casa Municipal and requested the mayor, DonJusto Lopez to endeavor to protect the Americans in the house. The mayorpromptly went to the house but was unable to quiet the mob. He thenreturned to his office and ordered Jos6 Maria Mora, Jefe de la Tropa de laSeguridad Publica, who held the rank of lieutenant in the forces of the Stateof Michoac~n, to proceed with troops to quell the riot and put an end to theattack upon the Americans. The troops, on arriving at the scene of the riot,instead of dispersing the mob, opened fire on the house as a consequence ofwhich Arnold was killed. The mob renewed the attack, and while theAmericans defended themselves as best they could, several members of themob approached the house from the rear where there were no windows andset fire to the roof. Connelly and Youmans were forced to leave, and asthey did so they were killed by the troops and members of the mob. Theirbodies were dragged through the streets and left under a pile of stones bythe side of the road so mutilated as scarcely to be recognizable. At nightthey were buried by employees of the Mining Company in its cemetery atTrojes.

3. On the morning following the murder of the Americans, Federal troopsarrived and established order. On March 17, the Government of the State'was directed by the President of Mexico to take all possible measures to


JUDICIAL DECISIONS

discover those who were responsible for the murders. Of the thousand ormore who made up the mob, court action was instituted against abouttwenty-nine. Only eighteen of this number were arrested, but the recorddiscloses that several were released on nominal bail, and were not appre-hended after their release. Five were condemned to capital punishment, buttheir sentences were modified. This action of the court was to no avail;when it was taken one had died, and the remaining four left town beforethey could be arrested. Seven were acquitted. The cases of six others werediscontinued, and the charges against the remaining eleven were left open inthe year 1887 for prosecution when they might be apprehended.

4. There appears to be no reason to doubt the substantial accuracy of theallegations in the memorial upon which the claim is predicated. Some con-tention is made in the brief filed by the respondent government to the effectthat it is not proved by evidence in the record that the Mexican authoritieswere chargeable with negligence in the matter of protecting the men whowere killed; or that soldiers participated in the assault on the men; or thatproper efforts were not made to apprehend and punish the persons partici-pating in the attack. We do not agree with that contention. In reachingconclusions respecting material facts we are confronted by no serious diffi-culties resulting from absence of or uncertainties in evidence. The riot tookplace in the day time. About one thousand persons participated. Theincidents of the riot were therefore of course well known throughout thetown. Pertinent facts are fully revealed by information collected and gath-ered immediately after the riot, by reports from American diplomatic andeonsular officers in Mexico, and by communications exchanged between theAmerican Legation at Mexico City and the Mexican Foreign Office. Copiesof official Mexican judicial records and other records accompany the Mexicananswer and throw considerable light on the character of the various stepstaken to bring to justice the guilty persons. It is pertinent to note thatcounsel for Mexico in oral argument did not challenge the substantial accu-racy of the evidence upon which the allegations in the memorial with respectto the occurrences out of which the claim arises are based. However,mention may be made of some of the principal parts of that evidence.

5. Accompanying a despatch of April 2, 1880, from the American Legationat Mexico City to the Secretary of State at Washington (Annex 34), is alengthy communication sent to the Legation by Arthur B. Kitchener,Director of the Trojes Mining Company. That communication furnishesdetailed information with respect to the incidents of the riot as they aredescribed in the memorial, and it contains the statement that the writer andMr. Stephens had "several witnesses who saw the soldiers later on fire on theAmericans." With a despatch of May 18, 1880, from the American Ministerat Mexico City to the Department of State (Annex 36), was enclosed anotherlengthy communication addressed by Mr. Kitchener to the Minister in replyto a request made by the latter for information regarding the steps taken by


THE AMERICAN JOURNAL OF INTERNAkIONAL LAW

Mexican authorities to bring to justice the persons implicated in the murder.Mr. Kitchener furnishes details with regard to the arrest of a number ofpersons and the release on what he calls "nominal bail" of some of those whohad been taken into custody. He mentions two cases in which the bondsmenof men so released were common workmen of no property or position;another case in which the bondsman was a shopkeeper. He expresses greatdissatisfaction with the manner in which the investigation of the crime wasconducted. Evidence which undoubtedly is of much value in furnishingreliable information concerning the facts relative to the riot is found in areport (Annex 39) transmitted to the Secretary of State at Washingtonunder date of May 16, 1881, by Mr. David E. Strother, American ConsulGeneral at Mexico City, who visited Angangueo for the purpose of making aninvestigation of the murder. Although his investigation was made a yearafter the riot, it seems reasonable to believe that the facts in relation to thetragedy were so vividly in the minds of persons with whom the ConsulGeneral came into contact that he was able to obtain accurate and compre-hensive information. From the Consul General's report it appears to beclear that he performed his work faithfully and with the sole purpose ofascertaining the truth. The manner in which he proceeded and the sourcesof his information may be shown to some extent by the following extractfrom his report:

In conducting any investigation of the subject in hand I thought itadvisable to conceal my official character and the motive of my visit,believing that I could thus obtain a more full and impartial statement ofthe facts. In this way I gathered evidence from Mexicans, English andAmericans, all agreeing in the main facts and confirming generally thestatements we have had heretofore. Some of the persons with whom Iconversed were well acquainted with all the principal parties concernedand eye witnesses of some of the facts which they narrated. All toldtheir stories clearly and dispassionately and seemed fairly to express thesettled convictions of thinking men on events, which occurring morethan a year before had been carefully sifted and conclusively established.

6. With respect to the participation of the soldiers in the attack on theAmericans the Consul General said:

It is believed by those who seem well acquainted with all the circum-stances, that the appearance of the troops on the ground in behalf ofpublic order, would of itself alone have been sufficient to have quelledthe riot and put an end to all further turbulent and unlawful proceed-ings, but to the astonishment of all, they at once took position andopened fire on the Americans in the house. This act encouraged the+mob to re-open their attack with redoubled fury. The soldiers con-tinued their fire until they had expended their ammunition killingGeorge Arnold by a shot through the head.

7. In submitting certain conclusions at the end of the report Mr. Strotherstated:

That there would in all probability have been no fatal results from the

-574


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riot had it not been for the unaccountable and scandalous conduct ofthe State troops.

S. The American Minister at Mexico City in his despatch of April 2,1880, reported to his government that upon receiving telegraphic informa-tion regarding the murder of the Americans at Angangueo, he brought thematter to the attention of the Mexican Foreign Office in a communication ofMarch 16, 1880, in which he expressed the feeling of assurance that suchprompt and energetic measures would be taken by the Mexican Governmentas the circumstances of the case might require. In an instruction of April 20,1880 (Annex 35), Secretary of State Everetts directed the Minister toexpress to the Mexican Government, without any reference to the questionof private indemnity in advance of more complete information, the confidentexpectations on the part of the Government of the United States that nothingwould be omitted in the matter of bringing the offenders to the strictestjustice according to law. Following the receipt of Consul General Strother'sdespatch of May 16, 1881, the Department of State, in an instruction datedNovember 4, 1881 (Annex 40), directed the American Minister at MexicoCity to bring to the attention of the Mexican Government claims which hadbeen presented to the Department by relatives of the three murdered men.The Department in this communication emphasized the participation of thetroops in the riot and with respect to this point said:

These troops, at a moment when they had the mob under control, andwhen the complete quelling of the riot seemed an immediate possibility,in utter disregard of the obligations of their office as preservers of thepeace and with wanton and deliberate violation of law, opened fire on thethree Americans, instantly killing one and joining with the infuriatedmob in the inhuman slaughter of the other two who were fleeing fortheir lives from their burning cabin, which had been deliberately set fireto over their heads.

It seems almost needless to remark that such conduct on the part ofsoldiers or police, under orders to preserve the peace and protect thelives and property of peaceable inhabitants, on the plainest principles ofinternational law and independent of the treaty stipulations betweenthe two nations, which are contravened by such proceedings, renders thegovernment in whose service they are employed, justly liable to thegovernment of the men, whose lives were thus wantonly and needlesslysacrificed.

9. Under date of May 15, 1882, the Mexican Foreign Office addressed acommunication to the American Legation denying all liability with respectto these claims (Annex 41). The Minister for Foreign Affairs, SefiorMariscal, challenged the right of the United States to intervene in the caseson the ground that the murdered men had not been matriculated underMexican law. He asserted that there had been no negligence in the matterof giving protection to the men and denied that evidence had been furnishedto prove that soldiers participated in the attack on the Americans. A replyto the Mexican Government's note was made at considerable length by the



American Minister in a note of May 27, 1882 (Annex 41). In this commu-nication the Minister referred to the participation in the riot by the Mexicanofficer and the men under his command as follows:

The above mentioned officer and soldiers under his charge confessed tohaving done this, alleging in excuse that they feared the vengeance of themob had they acted otherwise. A number of the towns people were eye-witnesses of this fact. Amongst others, I may mention the following:Don Guillermo Zercero 2; Diputado de Mineria, an owner of mines andsmelting works in the town; Don Justo Lopez, president of the Ayunta-miento of Angangueo; Don Ruperto Menchaca, butcher, well known tothe Company and Antonio Alamio, storekeeper, besides many minersand work people of the District. For above a week after the disturb-ance the above mentioned Mora and soldiers were still at liberty, butwere then taken into custody on evidence against them by Don JustoLopez.

10. In an instruction of September 4, 1882, the American Minister wasinformed that the Government of the United States did not deem it to beadvisable to press the cases further at that time.

11. The claim made by the United States is predicated on the failure ofthe Mexican Government to exercise due diligence to protect the father of theclaimant from the fury of the mob at whose hands he was killed, and thefailure to take proper steps looking to the apprehension and punishment ofthe persons implicated in the crime. In connection with the contentionwith respect to the failure of the authorities to protect Youmans from theacts of the mob, particular emphasis is laid on the participation of soldierswhich is asserted to be in itself a ground of liability. In behalf of therespondent government it is contended that the Mexican Government andthe Government of the State of Michoacin acted with due diligence inarresting and bringing to justice all persons against whom a reasonablesuspicion of guilt existed; that the charge that some State troops participatedin the riot is not proved by the evidence; and that, even if it were assumedthat the soldiers were guilty of such participation, the Mexican Governmentshould not be held responsible for the wrongful acts of ten soldiers and oneofficer of the State of Michoac~n, who, after having been ordered by thehighest official in the locality to protect American citizens, instead of carryingout orders given them acted in violation of them in consequence of whichthe Americans were killed.

12. We are of the opinion that the contentions advanced by the UnitedStates as to liability on the part of the Mexican Government are sustainedby the evidence in the record. Without discussing the evidence at length,it may be stated that the Commission is of the opinion that the record showsa lack of diligence in the punishment of the persons implicated in the crime.Annex 3 accompanying the Mexican answer reveals some interesting infor-mation with respect to the prosecution of persons who were arrested. Thereis not sufficient information before the Commission to warrant us in under-


JUDICLAL DECISIONS

taking to draw any definite conclusions with respect to certain cases inwhich prisoners were released and other cases in which severe sentencesimposed by the court of first instance were mitigated by a higher court. Itmvay be mentioned, however, that this judicial record shows that seventeenprisoners escaped, some of them while they were at liberty on bail. Citationshave been made to evidence with respect to participation of soldiers in thekilling of the three Americans. We consider that evidence to be ample proofof such conduct on the part of the soldiers, and touching this point it is per-tinent to note that evidence has not been adduced to disprove their guilt.It is also pertinent to note touching this point that some soldiers were ar-rested but were not sentenced. Evidence before the Commission does notdisclose whose weapons killed the Americans, but the participation of thesoldiers with members of the mob is established. It cannot properly be saidthat adequate protection is afforded to foreigners in a case in which the properagencies of the law to afford protection participate in murder. The claimof Alfred Jeannotat, under the convention of July 4, 1868, between theUnited States and Mexico, was a case very similar to the present one.Speaking of the participation of soldiers in riotous acts, Umpire Thorntonsaid:

It has been alleged that in the above-mentioned instance the sackingwas done by the released prisoners, and by a mob belonging to thepopulation of the town; but, if it were so, it was the military force com-manded by officers who put it in the power of the convicts and incitedthe mob to assist them in their acts of violence and plunder. It does notappear that without the arrival of the military force, which ought tohave protected the peaceable inhabitants of the town, there would havebeen any inclination to commit such acts of violence. The umpire istherefore of opinion that compensation is due to the claimant from theMexican Government. (Moore, International Arbitrations, Vol. IV,3673, 3674.)

13. With respect to the question of responsibility for the acts of soldiersthere are citations in the Mexican Government's brief of extracts from adiscussion of a subcommittee of the League of Nations Committee of Expertsfor the Progressive Codification of International Law. The passage quoted,which deals with the responsibility of a state for illegal acts of officialsresulting in damages to foreigners, begins with a statement relative to theacts of an official accomplished "outside the scope of his competency, that

is to say, if he has exceeded his powers." An illegal act of this kind, it isstated in the quotation, is one that cannot be imputed to the state. Apartfrom the question whether the acts of officials referred to in this discussionhave any relation to the rule of international law with regard to responsibilityfor acts of soldiers, it seems clear that the passage to which particular atten-tion is called in the Mexican Government's brief is concerned solely with thequestion of the authority of an officer as defined by domestic law to act forhis government with reference to some particular subject. Clearly it is not



intended by the rule asserted to say that no wrongful act of an official actingin the discharge of duties entrusted to him can impose responsibility on agovernment under international law because any such wrongful act must beconsidered to be "outside the scope of his competency." If this were themeaning intended by the rule it would follow that no wrongful acts com-mitted by an official could be considered as acts for which his governmentcould be held liable. We do not consider that any of these passages fromthe discussion of the subcommittee quoted in the Mexican brief are atvariance with the view which we take that the action of the troops in par-ticipating in the murder at Angangueo imposed a direct responsibility on theGovernment of Mexico.

14. Citation is also made in the Mexican brief to an opinion rendered byUmpire Lieber in which effect is evidently given to the well recognized ruleof international law that a government is not responsible for malicious actsof soldiers committed in their private capacity. Awards have repeatedlybeen rendered for wrongful acts of soldiers acting under the command of anofficer. (See for example the claim of Frederick A. Newton v. Mexico, forthe theft of property by Republican troops under Colonel Rios, and theclaim of A. F. Lanfranco v. Mexico, for the looting of a store at Tehuantepecby armed men under the command of the Jefe Politico of that place-Moore,International Arbitrations, Vol. 3, p. 2997; also the interesting case of theGerman sentry who at the frontier near Vexaincourt shot from the Germanside and killed a person on French territory, mentioned by Oppenheim,International Law, 3d edit., Vol. 1, pp. 218-219; and the opinion of theCommission in the Falcon claim, Docket No. 278.)' Certain cases comingbefore the international tribunals may have revealed some uncertaintywhether the acts of soldiers should properly be regarded as private acts forwhich there was no liability on the state, or acts for which the state shouldbe held responsible. But we do not consider that the participation of thesoldiers in the murder at Angangueo can be regarded as acts of soldierscommitted in their private capacity when it is clear that at the time of thecommission of these acts the men were on duty and under the immediatesupervision and in the presence of a commanding officer. Soldiers inflictingpersonal injuries or committing wanton destruction or looting always act indisobedience of some rules laid down by superior authority. There couldbe no liability whatever for such misdeeds if the view were taken that anyacts committed by soldiers in contravention of" instructions must always beconsidered as personal acts.

15. The respondent government has not denied that, under the conventionof September 8, 1923, acts of authorities of Michoac6n may give rise toclaims against the Government of Mexico. The Commission is of theopinion that claims may be predicated on such acts.

16. Claim is made in this case for damages in the amount of 850,000.00.

1 Supra, p. 566.


JUDICIAL DECISIONS

The Commission is of the opinion that an award may properly be made inthe sum of $20,000.00.

Decision

17. The Commission therefore decides that the Government of the UnitedMexican States must pay to the Government of the United States of Americathe sum of $20,000.00 (twenty thousand dollars) without interest on behalfof Thomas H. Youmans.

Done at Washington, D. C., this 23d day of November, 1926.C. VAN VOLLENROVEN,


Commissioner.G. FERNkNDEZ MACGREGOR,

Commissioner.

AGNES CONNELLY et al. v. MExico (Docket No. 270)

Opinion rendered November 23, 1926Recovery of damages by collateral relatives.In taking account of the indignity and grief occasioned by the tragic death of Connelly, in

which Mexican troops participated, not only his father, but his brothers and sisters wereafflicted, In view of the material support contributed by Connelly to his brothers and sistersliving with his father, they sustained a pecuniary loss by his death. In fixing the amount ofdamages it can not be assumed that had Connelly lived he would have continued throughouthis lifetime to send money to his relatives.

Counsel: United States, C. L. Bouv6, Agent; Mexico, Oscar Rabasa.1. Claim for damages in the amount of $50,000.00 is made in this case by

the United States of America against the United Mexican States in behalfof Agnes, Alice, Thomas, Mary A., and William Connelly and Ellen EdithT Murphy, whose brother, John A. Connelly, together with two other Ameri-cans, Henry Youmans and George Arnold, was killed at the hands of a mobon March 14, 1880, at Angangueo, Michoac6n, Mexico. The occurrencesgiving rise to this claim are the same as those underlying the claim of ThomasH. Youmans (Docket No. 271). 1 The conclusions of the Commission withrespect to the responsibility of Mexico in the claim of Thomas H. Youmanswhich are stated in the Commission's opinion in that case are applicable tothe instant case, and in disposing of it it is necessary merely to refer tocertain questions raised by the Mexican Government with respect to thestatus of the claimants and the right of the United States to intervene intheir behalf.

2. It is alleged by the respondent government (a) that the United Stateshas no standing in this case, since proof of the American citizenship of JohnA. Connelly, the murdered man, has not been presented, and (b) that, theright of the United States to intervene in this case being assumed, damagescan not be recovered in behalf of the brothers and sisters of John A. Connelly

I Supra, p. 571.



in their own right, since they are collateral relatives who were not dependenton the deceased for support.

3. From evidence in the record, we are satisfied that the American citizen-ship of the deceased John A. Connelly has been convincingly established. Itappears that his parents lived at Lockport, in the State of New York; thatan elder brother and two elder sisters were baptized at that place in the years1852, 1853, and 1855, respectively; that John A. Connelly was born on Sep-tember 26, 1856, at a place not mentioned and was baptized at Lockport onOctober 18, 1856. There is no reasonable doubt that he was a native citizenof the United States. It may further be mentioned, however, that there wasintroduced in evidence the record of the naturalization of Matthew Connelly,father of John A. Connelly, showing that the former was naturalized as anAmerican citizen on June 16, 1855, that is, about a year prior to the birth ofthe son John.

4. The Commission is of the opinion that by the killing of John A. Con-nelly not only his father, but other members of his family, brothers andsisters, sustained a pecuniary loss. In taking account, as we deem it properto do, of the indignity and grief occasioned by the tragic killing of Connelly,in which Mexican troops participated, we are mindful that brothers andsisters, and not the father alone were afflicted. The Commission is awarethat it has been held in an international award that collateral relatives of adeceased claimant not dependent on him for support are not to be admittedas claimants in his place (McHugh case; Hale's Report 61-62, 240-241;Moore, 3278-3279); but this situation is not present in this case. And as tothe right of collateral relatives of a killed man not dependent on him forsupport to claim for damages sustained by his death awards differ. Bearingin mind the elements of damages of which international tribunals have takenaccount in similar cases (see for example, the discussion of this point in theDi Caro case, Ralston, Venezuelan Arbitrations of 1903, p. 769) we considerit proper to take cognizance of information contained in the record withrespect to material support contributed by Connelly to members of hisfamily. There is evidence to the effect that at the time of his death, foursisters, Mary A., Ellen, Agnes and Alice, aged respectively, 28, 24, 17 and 14years, and one of his brothers, aged 11 years, were living with their father athis home, and that the deceased sent to his father to be used for the supportof his brothers and sisters on an average of $125.00 each month, and that onone occasion he had sent an additional sum of $500.00. However, in fixingthe amount of damages it cannot be assumed that had Connelly lived hewould have continued throughout his lifetime to send money to his relativesthough he did so when the father was alive and several children lived withhim.

5. Claim is made in this case for damages in the amount of $50,000.00.The Commission, however, is of the opinion that an award may properly bemade in the sum of $18,000.00.


JUDICIAL DECISIONS

Decision

6. The Commission therefore decides that the Government of the UnitedMexican States must pay to the Government of the United States of Americathe sum of $18,000.00 (eighteen thousand dollars) without interest, onbehalf of the claimants.

Done at Washington, D. C., this 23rd day of November, 1926.C. VAN VOLLENHOVEN,


Commissioner.G. FERNJNDEZ MACGREGOR,

Commissioner.

TEODORO GARCfA AND M. A. GARZA v. UNITED STATES (Docket No. 292)

Opinion rendered December 8, 1926Fatal shooting by border patrol to prevent escape of alien unlawfully crossing border

held wrongful under international law.There exists among civilized nations an international standard concerning the taking of

human life, and it is the duty not only of municipal authorities but of international tribunalsas well to obviate any reckless use of firearms. In order to consider shooting on the borderby armed officials of either government justified, a combination of four requirements wouldseem to be necessary:

(a) The act of firing, always dangerous in itself, should not be indulged in unless thedelinquency is sufficiently well stated;

(b) It should not be indulged in unless the importance of preventing or repressing thedelinquency by firing is in reasonable proportion to the danger arising from it to the livesof the culprits and other persons in their neighborhood;

(c) It should not be indulged in whenever other practicable ways of preventing or repress-ing the delinquency might be available;

(d) It should be done with sufficient precaution not to create unnecessary danger, unlessit be the official's intention to hit, wound or kill.

In no manner can the Commission endorse the conception that a use of firearms withdistressing results is sufficiently excused by the fact that there exist prohibitive laws, thatthe enforcement of these laws is necessary, and that the men who are instructed to enforcethem are furnished with firearms.

The action by the President of the United States in reversing the conviction of the soldierby court-martial and restoring him to duty constitutes no foundation for the allegation of adenial of justice.

Dissenting opinion by NiELSEN, Commissioner.

Counsel: United States, C. L. Bouv, Agent; Mexico, Eduardo Sufrez.1. This claim is presented by the United Mexican States against the

United States in behalf of Teodoro Garcia and Maria Apolinar Garza,Mexcan nationals, father and mother of Concepci6n Garcia, a girl of Mexi-can nationality, who on April 8, 1919 between 9 and 10 a. m. was killed bya shot from the American side of the Rio Bravo del Norte or Rio Grande,while crossing from the American to the Mexican side on a raft propelledby two men in the water, in the company of her mother and her aunt, notfar from Havana, Texas, the father, a laborer, looking on from the Mexicanbank. An American officer, Second Lieutenant Robert L. Gulley, 4thUnited States Cavalry, was that morning on duty on the border with an



armed patrol of four men, had discovered the raft in contravention of thelaws, and fired in order to make them halt, and unfortunately had mortallywounded the young girl who died immediately thereafter. Having beentried before a court-martial, he had been sentenced on April 28, 1919 to bedismissed from the military service, but the commanding officer at SanAntonio, Texas, in reviewing and approving the sentence, had used his rightto reserve the case for the decision of the President of the United States,and the President, acting on the advice of the Board of Review, the JudgeAdvocate General and the Secretary of War, had reversed the findings ofthe court-martial, released the lieutenant from arrest and restored himto duty (September 1919). It is alleged that the United States is liableboth for a wrongful killing by one of its officials and for denial of justice;that the claimants sustained damages in the sum of 50,000 Mexican pesos;and that the United States ought to pay them the said amount, with interestthereon.

2. Nearly all of the facts in this case are undisputed. The raft left theMexican side in the morning of the said day to take from the opposite sideGarcia's daughter who had been for about three years in the United States,but had fallen ill and was to be taken home, and Garcia's wife with hersister, both of whom had been on the other side for a couple of days. Allmembers of the party were unarmed. They crossed the river on a placewhere such crossing was strictly forbidden by the laws of both countries.It is not doubtful from the record that at least Teodoro Garcia, the girl'sfather, knew perfectly well that this crossing was a delinquency and a riskyact. Nor is it doubtful that the American officer had been especially in-structed to enforce on the river border different sets of acts and/or regula-tions which forbade crossing, smuggling, and similar offenses. Less thantwo months before, however, on February 11, 1919, a military regulationhad been promulgated, reading in its paragraph 7: "but firing on unarmedpersons supposed to be engaged in smuggling or crossing the river at un-authorized places, is not authorized." Less than three weeks before, troopcommanders had been told they would be held responsible that the pro-visions of said bulletin be "carefully explained to all men." The court-martial decided that this bulletin had been violated by the officer. ThePresident of the United States gave a contrary decision after submissionof reports which held, among other things, that the bulletin had not beenviolated. The only point of some importance on which the evidence differsrelates to the question, whether the raft at the time of the shooting was inthe Mexican or in the American part of the stream; but for the decision tobe given by the Commission this question is not material.

3. The killing and its circumstances being established, the Commissionhas to decide, whether the firing as a consequence of which the girl wasmortally wounded constituted a wrongful act under international law.It is not for this Commission to decide whether the author could or should


JUDICIAL DECISIONS

be punished under American laws; therefore, it is not for the Commissionto enter upon the field where the American court-martial, the reviewinggeneral at San Antonio, Texas, and the President of the United States foundthemselves. The only problem before this Commission is whether, underinternational law, the American officer was entitled to shoot in the direc-tion of the raft in the way he did.

4. The Commission makes its conception of international law in thisrespect dependent upon the answer to the question, whether there existsamong civilized nations any international standard concerning the takingof human life. The Commission not only holds that there exists one, butalso that it is necessary to state and acknowledge its existence because ofthe fact that there are parts of the world and specific circumstances in whichhuman practice apparently is inclined to fall below this standard. TheCommission, in its opinion on the Swinney case (Docket No. 130),' speak-ing of the Rio Grande, stated already: "Human life in these parts, on bothsides, seems not to be appraised so highly as international standards pre-scribe." Nobody, moreover, will deny that in time of active war the valueof human life even outside of battlefields is underrated. Authoritativewriters in the field of domestic penal law in different countries and authori-tative awards have emphasized that human life may not be taken either forprevention or for repression, unless in cases of extreme necessity. To givejust two quotations on the subject: the famous Italian jurist Carrera doesnot hesitate to qualify as an abuse of power excessive harshness employedby agents of the public force to realize an arrest, and adds that it is to suchabuse that the sheriffs of Toscane owe their sad reputation (Programma delcorso di diritto criminale, 8th edition, Vol. V, 1911, pp. 114-115; compare foran historic development Vol. I, 1906, pp. 56-60); and in State v. Cunning-ham, 51 L. R. A. (N. S.) 1179, an American court said:

The highest degree of care is exacted of a person handling firearms.They are extraordinarily dangerous, and in using them extraordinarycare should be exercised to prevent injury to others. . . . We un-qualifiedly condemn this practice of the reckless use of firearms. Of-ficers should make all reasonable efforts to apprehend criminals; butthis duty does not justify the use of firearms, except in the cases au-thorized by law. Officers, as well as other persons, should have atrue appreciation of the value of a human life.

5. If this international standard of appraising human life exists, it is theduty not only of municipal authorities but of international tribunals aswell to obviate any reckless use of firearms. On the part of Americanauthorities this duty for the American-Mexican border was recognized inBulletin No. 12, May 30, 1917 (" Particularly will be punished such offensesas unnecessary shooting across the border without authority"), by para-graph 7 of our Bulletin No. 4, February 11, 1919 ("but firing on unarmed

I Supra, p. 562.



persons supposed to be engaged in smuggling or crossing the river at unau-thorized places, is not authorized"), and by paragraph 20 of General OrderNo. 3, March 21, 1919 ("Troop Commanders will be held responsible thatthe provisions of Bulletin No. 4 . . . , February 11, 1919, is carefullyexplained to all men"). In the field of international law the said principlehas been recognized in the fourth Hague Convention of 1907, where Article,46 of the "Regulations respecting the laws and customs of war on land"provides that in occupied territory "the lives of persons . . .must berespected," Article 3 of the treaty itself adding that the belligerent partywhich violates the provisions of the said regulations shall, if the case de-mands, be liable to pay compensation and shall be responsible for all actscommitted by persons forming part of its armed forces. In order to con-sider shooting on the border by armed officials of either government (soldiers,river guards, custom guards) justified, a combination of four requirementswould seem to be necessary: (a) the act of firing, always dangerous in itself,should not be indulged in unless the delinquency is sufficiently well stated;(b) it should not be indulged in unless the importance of preventing orrepressing the delinquency by firing is in reasonable proportion to the dangerarising from it to the lives of the culprits and other persons in their neighbor-hood; (c) it should not be indulged in whenever other practicable ways ofpreventing or repressing the delinquency might be available; (d) it shouldbe done with sufficient precaution not to create unnecessary danger, unless,it be the official's intention to hit, wound or kill. In no manner the Com-mission can endorse the conception that a use of firearms with distressingresults is sufficiently excused by the fact that there exist prohibitive laws,that enforcement of these laws is necessary, and that the men who areinstructed to enforce them are furnished with firearms.

6. Bringing the facts of the present case to the test of these principles.the Commission holds that, in the first place, the delinquency of crossing theriver (not that of anything else or more) was sufficiently established. In thesecond place, the record only shows that the officer expected the delinquentsto be engaged in importing barrels of the native liquor called "mezcal," allother suppositions as to atrocious acts they might have been perpetratingbeing mere inferences; a proportion between the supposed delinquency andthe endangering of lives is therefore not established by the record. Remarksin the record relative to the "secrecy and speed with which the crime wascommitted," to the fact of its occurrence "at a hidden point on the border"("a secluded and secret place") and to the status of war still existing atthe time between the United States and Germany (April 1919) cannot eithersupply new facts, or outweigh the fact that the crossing occurred in broad,daylight, between 9 and 10 a. m.; it is, moreover, stated in the record by aMexican district judge that "the inhabitants or residents of both sides of theriver . . . cross every day or very frequently to the other side" withoutlooking "for the authorized shallow parts or passages, some of which are


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situated thirty or forty kilometers from their place of residence." In thethird place, it appears from the record that the lieutenant did what he couldto reach the place where the raft would probably land on the American bankof the river, so as to be able to arrest them without having resort to firing, butthat the conditions of the bank did not allow him to be there in time andthat hailing was impossible; the Commission has a full comprehension of thedifficulties presenting themselves to an officer who in a case like this one hasinstantaneously to decide what to do. In the fourth place, however, thestatement that the firing merely intended to give notice to the culprits of theofficer's intention to investigate their business or to arrest them does notexplain why the firing took place in so dangerous a way; the record showingthat while persons were "swimming in the water and clinging thereto"(to the raft), he shot in the water quite near the raft, and that the child waswounded by "one of the first shots," the lieutenant himself recognizing thathe "would not have fired in that direction if he had known women and chil-dren were on the raft." The allegation made by Lieutenant Gulley that"he knew nothing about Bulletin No. 4" can have no weight with theCommission, unless in so far as it might show that he considered himself asnot having measured up to the requirements of said bulletin.

7. The Judge Advocate's report of September 18, 1919, which apparentlywas the basis of the President's decision of said month would seem to interpretBulletin No. 4, February 11, 1919, so as to read that firing on delinquents isnot authorized in case the official knows or reasonably should assume thatthe delinquents are unarmed, but that such firing is authorized in case theofficial sees or is justified in assuming that they are armed, the presumptionbeing in favor of their carrying firearms. In case this interpretation hadbeen incorporated in the judicial decision emanating from the President ofthe United States, or if that interpretation were indispensable to explainthe President's decision, the Commission would feel bound by this interpre-tation of a municipal enactment by the highest municipal decision of a.judicial nature in this field. But assuming it to be a right interpretation asit stands although not specifically endorsed by the President, it could notchange in any way the facts in the present case; for in applying its principlesto this claim the Commission left aside the question whether the claimantswere armed or not.

8. The allegation of a denial of justice committed by the United States hasno foundation in the record. In order to assume such a denial there shouldbe convincing evidence that, put to the test of international standards, thedisapproval of the sentence of the court-martial by the President acting inhis judicial capacity amounted to an outrage, to bad faith, to wilful neglectof duty, or to an insufficiency of governmental action so far short of inter-national standards that every reasonable and impartial man would readilyrecognize its insufficiency. None of these deficiencies appears from therecord.



9. The record leaves no doubt but that the claimants, at least TeodoroGarcia, realized their acting in contravention of laws and regulations whichhad been effective since about two years. Though this knowledge on theirpart cannot influence the answer to the question, whether the shooting wasjustified or not, it ought to influence the amount of damage to which theyare entitled. In fixing this amount the Commission does not considerreparation of pecuniary loss only, but also satisfaction for indignity suffered.An amount of $2,000, without interest, would seem to express best the per-sonal damage caused the claimants by -the killing of their daughter by anAmerican officer.

Decision

10. The Commission accordingly decides that the Government of theUnited States of America is obligated to pay to the Government of theUnited Mexican States $2,000 (two thousand dollars), without interest, inbehalf of Teodoro Garcia and Maria Apolinar Garza.

Done at Washington, D. C., this 3rd day of December, 1926.C. VAN VOLLENHOVEN,

Presiding Commissioner.G. FERNANDEZ MACGREGOR,

Commissioner.

DISSENTING OPINION

I regret that I feel constrained to dissent from the views of the other twoCommissioners with respect to this claim. A very small award was renderedin the case. There are instances in which an arbitral tribunal, after reachingthe conclusion that there was no liability in a given case, has recommendedthat compensation be made by the respondent government as an act ofgrace. In the present case, in which I believe there is no legal liability on thepart of the respondent government, I should have been glad to join in arecommendation to the Government of the United States to make compen-sation to the claimants in an amount larger than that of the pecuniary award.I am stating my views with regard to the law applicable to the case, first,because I deem it to be desirable to analyze the charges made with respectto the proceedings conducted in connection with the trial of the army officerwho shot the girl whose death gave rise to this claim, and, second, becausemy views apparently differ from those of the other Commissioners not onlywith respect to the law applicable to this case, but also with respect to thefunctions of the Commission in acting on a case of this character.

The claim made by the Mexican Government is based on two grounds: (1)that there was a denial of justice, as that term is understood in internationallaw, in the action of the President of the United States in improperly settingaside the sentence of the court-martial which found an officer of the American


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army guilty of charges preferred against him, and (2) that the United Statesis liable for a wrongful act committed by that officer.

In the Mexican memorial it is stated that "from a constitutional stand-point, the power which the Hon. President of the United States has to reversethe verdict of the court-martial, by declaring Lieut. Gulley not responsiblefor the crime of homicide, contrary to all the evidence on record in theproceedings, is not open to discussion; but it is beyond doubt that thisdecision is not conformable to the universal principles of justice, but only tothose questions of expediency of a political nature, which while they assuredlycomply with constitutional requirements, yet none the less transgress thelaw of nations." And in the Mexican reply it is stated that "the decisiongiven by the President of the United States of America, to the effect thatLieutenant Gulley was not responsible for the death of the little girl namedConcepci6n Garcia, however it may be in accordance with the constitutionaland military laws of the latter country, violates the principles of universaljustice accepted by all nations and which therefore are a part of internationallaw." These are very serious charges, and I am of the opinion that they arethe result, in part at least, of a misconception of the military law governingthe proceedings in the case of Lieutenant Gulley. In the oral argumentof counsel for Mexico a somewhat different aspect was given to the Presi-dent's action, which was spoken of as a pardon granted to the accused.

From the American answer with its accompanying exhibits the facts inrelation to the shooting of Concepci6n Garcia and the trial of LieutenantGulley may be briefly summarized as follows:

On the morning of April 8, 1919, Lieutenant Gulley was in charge of anarmed patrol consisting of himself and four men. He was under instructionsto prevent smuggling and crossing of the Rio Grande at unauthorized points,to investigate all suspicious persons and vehicles, to allow no one with fire-arms south of a certain military road and to report any unusual happenings.While on duty he thought he saw a raft put out from the Mexican side of theriver coming towards the American side at a distance of from 2,500 to 2,800yards from where he was. As the undergrowth was thick at the point wherethe raft appeared to be and prevented a good view, Gulley proceeded with hispatrol about 400 yards down the river from whence he saw the raft aboutfour or five yards from the American side moving towards the Mexican side.The river at this point is about 75 to 100 yards in width. The distance wastoo great to permit Gulley to see persons on board. The distance betweenGulley and the raft, estimated at from 1,500 to 2,400 yards being too greatto enable him to hail persons upon it, he fired about twelve shots in the direc-tion of the raft, stating at the time he did so, that he did not desire to hit anyone but merely to frighten persons on the raft, so as to cause them to returnto the American side in order that he might arrest them. The sights of therifle were set first at 1,000 yards, one-half the estimated distance to the raft,then at 1,150 yards, and finally at 1,450 yards, about three-fourths of the



estimated distance, and the shots were seen to strike the water betweenGulley and the raft and around the raft.

At the time of the shooting there were on the raft the wife of TeodoroGarcia, her sister and two children of Garcia, and in the water propelling theraft or swimming with it were two men and two women, all Mexicans, re-turning from the United States. The business in the United States of thefour women and the children or the reason for crossing the river was notdisclosed by the evidence. The two men had been engaged by Garcia in themorning to propel the raft from the Mexican to the American side and re-turn. One of the children, Concepci6n Garcia, had been on the Americanside for three years and was ill when she was returning home. Those incontrol of the raft, although they heard the shots and saw the bullets striking,pursued their way towards the Mexican side. One of the bullets, either rico-cheting from the water or coming directly from the gun fired by Gulley, struckthe child, Concepci6n Garcia, in the head inflicting a mortal wound fromwhich she died in Mexico. The accused did not know any of the persons onthe raft, and neither he nor any of his men suspected at the time of theshooting that some one on the raft had been killed.

Lieutenant Gulley was brought to trial before a general court-martialwhich convened at McAllen, Texas, April 28, 1919. Two charges werepreferred against him: (1) that he "with malice aforethought, wilfully,deliberately, feloniously, unlawfully, and with premeditation" killed Con-cepci6n Garcia, and (2) that he violated standing army orders by firing onunarmed persons crossing the Rio Grande at an unauthorized place. Underthe first charge he was found guilty of manslaughter within the meaning ofthe 93rd Article of War, and he was also found guilty of the second charge,and he was sentenced to be dismissed from the Army. The reviewingauthority (the Commanding General) approved the sentence, but conform-ably to an existing Army regulation and the 51st Article of War, he trans-mitted the record of the trial to the so-called "Board of Review" whichrendered an opinion to the effect that Lieutenant Gulley was not under thelaw guilty of the charges preferred against him. This opinion, in which it isshown several high officers participated, was signed by the Judge AdvocateGeneral of the Army and approved by the Secretary of War, and was, to-gether with the record of the trial before the court-martial, transmitted tothe President of the United States pursuant to the provisions of the 51stArticle of War. The President disapproved of findings of guilty and thesentence imposed on Lieutenant Gulley and ordered his release from arrestand his restoration to duty. Upon this action of the President the MexicanAgency bases the charge of a denial of justice.

By the 48th Article of War (39 Stat. L. 658) a sentence extending to thedismissal of an officer requires, in time of peace, confirmation by the Presi-dent. In time of war such a sentence may, conformably to Article 51 of theArticles of War, be suspended by the competent authority pending action


JUDICIAL DECISIONS

in the case by the President to whom, when this procedure is followed, a copyof the record of the trial must be sent. If it can be imagined that in anyeivilized country a law could exist authorizing the setting aside of a sentenceof dismissal or a sentence of death by the chief magistrate of the nationirrespective of the guilt of the accused person under the law, the recordsaccompanying the answer in the present case obviously show that no suchaction was taken by the President. While in time of war a commandinggeneral may order the execution of a sentence of dismissal, he is authorizedto suspend the sentence pending action by the President, and when such acourse is adopted, it is clear that the President, under the system of militaryjustice of the United States, acts in a judicial capacity, as a court of lastresort, just as he so acts in time of peace, when sentences of this kind must besubmitted to him before they are carried into execution. See on this pointRunkle v. United States, 122 U. S., 543, 558. In the present case there werelaid before the President as a court of last resort not only the record of thecourt-martial proceedings, but an opinion of the Board of Review signedby the Judge Advocate General of the Army and approved by the Secretaryof War. To my mind it must of course be taken for granted that thePresident concurred in that opinion, in which the conclusions are submittedthat Lieutenant Gulley did not commit manslaughter as defined by Americanlaw and did not violate an army regulation forbidding the firing on unarmedpersons.

I am of the opinion that the Commission is bound by the President'sinterpretation of American law with respect to these two points. I take itthat international law recognizes the right of the authorities of a sovereignnation, particularly a court of last resort, to put the final interpretation uponthe nation's laws. Possibly there may be an exception to this general rulein a case where it can be shown that a decision of a court results in a denial ofjustice, that is, when a decision reveals an obviously fraudulent or erroneousinterpretation or application of the local law. Domestic laws may con-travene the law of nations, and judicial decisions may result in a denialof justice, but assuredly it is a well-recognized general principle that theconstruction of national laws rests with the nation's judiciary. In the opin-ion of the two other Commissioners some question seems to be raised whetherit was necessary for the President, in order to reach the decision which hegave, to put an interpretation on Bulletin No. 4 of February 11, 1919, withrespect to firing on unarmed persons. The opinion of the Board of Reviewdeals in detail with the interpretation of this army regulation and reachesthe conclusion by what appears to me to be sound reasoning that it was notviolated by Lieutenant Gulley. Since, if in the opinion of the President theregulation had been violated the sentence of the court-martial could not havebeen disapproved, which it was, obviously the President put upon this regu-lation the construction that it was not violated by Lieutenant Gulley, how-ever meagre may be the record of his specific action. The grave charge



made in the oral and written arguments advanced in behalf of the MexicanGovernment that the action of the President was a denial of justice, in that a,proper sentence of a lower court was deliberately set aside as a matter ofexpediency and contrary to all the evidence in the records of the proceedings,probably requires no more discussion than that given to it in the opinion ofthe two other Commissioners. I have, however, very briefly indicated thecharacter of the careful proceedings that were taken in this case. A denialof justice can be predicated upon the decisions of judicial tribunals, evencourts of last resort. But attempts to establish a charge that a court of lastresort has acted fraudulently or in an obviously arbitrary or erroneousmanner are very infrequently made. This Commission has in the pastbroadly indicated its views as to what is required to establish such a charge.It is probably unnecessary in view of what has already been said with regardto the proceedings in this case to say anything more for the purpose ofshowing that the decision of the court-martial imposing a sentence of dis-missal on Lieutenant Gulley was not set aside merely as a matter of expedi-ency, or that the construction and application of the law by the court of lastresort was neither fraudulent, nor arbitrary, nor obviously erroneous, nor anact of expediency.

The second point raised in the case before the Commission is more difficult.The charge of a denial of justice being disposed of, there remains for consider-ation the issue whether the deed committed by Lieutenant Gulley for whichhe was tried is one for which his government is, under international law,liable to respond in damages. There is no question with regard to the rule ofinternational law that a nation is responsible for acts of soldiers which arenot acts of malice committed in their private capacity. See the opinion ofthe Commission in the claim of Thomas H. Youmans, Docket No. 271, andthe cases therein cited. The Commission must therefore consider thequestion as to what are the kinds of acts of soldiers for which a nation isresponsible. International law specifically defines certain acts of represent-atives or agencies for which a government must answer, such as looting orwanton or unnecessary destruction of property by soldiers, and malicious orwanton taking of human life. Acts of this kind are generally also condemnedand punishable under domestic law. Well defined responsibility may also.be illustrated by the liability for damages caused by public vessels. Incases of collisions between public and private vessels awards have beenrendered against a nation because public vessels have been found guilty offaulty navigation under the applicable rules of admiralty law. In cases ofcollision in territorial waters it has been asserted that the law applicable to,the determination of the question of fault was the lex loci delicti commissi.See The Canadienne claim and The Sidra claim, American and British ClaimsArbitration under the special agreement of August 18, 1910, Agent's Report,pp. 427, 452.1 The precise question before the Commission is whether the

1 Printed in this Jouiw x, Vol. 8 (1914), p. 655, and VoL 16 (1922), p. 110.


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act of Lieutenant Gulley, held by the court of last resort not to be in violationof the law of his country, is one for which his government is liable underinternational law. Whether the United States is so liable must, in myopinion, be ascertained by a determination of the question whether Americanlaw sanctions an act that outrages ordinary standards of civilization. It isconceivable that domestic laws, just as they may contravene internationallaw in their operation on property rights of aliens may, by their sanction ofpersonal injuries under certain circumstances, offend broad standards ofgovernmental action the failure of observance of which imposes on a nation,as arbitral tribunals have frequently held, the liability to respond in damagesunder international law. A fairly close analogy to the question presented fordetermination in this case may be found, I think, in cases that have fre-quently come before international tribunals involving gross mistreatment ofaliens during imprisonment. The Commission has in other cases indicated astandard by which it considers it must be guided in making judicial pro-nouncements with respect to alleged wrongful acts of authorities againstprivate persons. It has expressed the view that it cannot render an awardfor pecuniary indemnity in any case in the absence of evidence of a pro-nounced degree of improper governmental administration. It has madeawards dismissing cases in the absence of such evidence and has renderedpecuniary awards in cases in which it considered that such evidence wasfound in the record.

In the present case the opinion of the majority seems to me to be groundedon a different theory as to liability. It is said in the opinion that the "onlyproblem before this Commission is whether, under international law, theAmerican officer was entitled to shoot in the direction of the raft in the wayhe did;" and that the Commission "makes its conception of internationallaw in this respect dependent upon the answer to the question, whether thereexists among civilized nations any international standard concerning thetaking of human life." It is stated that, in order to consider shooting on theborder by armed officials of either government justified, "a combination offour requirements would seem to be necessary: (a) the act of firing, alwaysdangerous in itself, should not be indulged in unless the delinquency issufficiently well stated; (b) it should not be indulged in unless the importanceof preventing or repressing the delinquency by firing is in reasonable propor-tion to the danger arising from it to the lives of the culprits and other personsin their neighborhood; (c) it should not be indulged in whenever other prac-ticable ways of preventing or repressing the delinquency might be available;(d) it should be done with sufficient precaution not to create unnecessarydanger, unless it be the official's intention to hit, wound or kill." It isfurther stated that "If this international standard of appraising human lifeexists, it is the duty not only of municipal authorities but of internationaltribunals as well to obviate any reckless use of firearms." To my mind it isnot the duty of an international tribunal either to attempt in effect to formu-



late certain rules of criminal jurisprudence or to undertake to "obviate"acts which a tribunal may regard to be objectionable. In my opinion, it isthe duty of an international tribunal to determine whether a nation mustrespond in damages for acts alleged to be wrongful, and in discharging thisduty a tribunal must take cognizance of and give effect to rules of law, andin cases in which unfortunately concrete rules are wanting, give properapplication to principles. It must apply law to facts and pass upon acts ofomission or commission in the light of rules or principles. And as I haveheretofore observed, since the Commission cannot properly challenge theconstruction put upon penal laws of the United States by the court of lastresort in connection with the case of Gulley, it must determine whetherlaws under which his action was not punishable obviously fall below thestandard of similar laws of members of the family of nations.

A very apposite case with respect to this point is the Cadenhead case de-,cided May 1, 1914, by the tribunal created by the special agreement con--cluded August 18, 1910, between the United States and Great Britain(Agent's Report, p. 506).2 I do not agree with the statement in the opinionrendered by the two other Commissioners as to the decision of the tribunal.It is said that the claim was dismissed "because no personal pecuniary loss ordamage resulting to relatives or representatives had been proven." Thatpoint is mentioned in the tribunal's opinion. But the fundamental pointin the case is concerned with the military law as construed by a military courtunder which a sentinel who accidentally shot a British subject while aimingat an escaping military prisoner was held not liable to punishment. Coun-sel for Great Britain severely criticized the army regulations under which-shooting at an escaping prisoner in the manner disclosed by the record waspermitted. With respect to what seems to me to have been the controllingpoint in the case, the tribunal said (pp. 506-507):

His Britannic Majesty's Government contend that this soldier wasnot justified in firing upon an unarmed man on a public highway, thathe acted unnecessarily recklessly, and with gross negligence, and thatcompensation should be paid by the Government of the United Stateson the ground that under the circumstances it was responsible for theact of this soldier.

The question whether or not a private soldier belonging to theUnited States Army and being on duty acted in violation of or in con-formity with his military duty is a question of municipal law of theUnited States, and it has been established by the competent militarycourt of the United States that he acted in entire conformity with themilitary orders and regulations, namely, section 365 of the Manual ofGuard Duty, United States Army, approved June 14, 1902.

The only question for this Tribunal to decide is whether or not, under.these circumstances, the United States should be held liable to pay com-pensation for this act of its agent.

It is established by the evidence that the aforesaid orders under which2 Printed in this JouRNAL, Vol. 8 (1914), p. 663.


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this soldier, who fired at the escaping prisoner, acted, were issued pur-suant to the national law of the United States for the enforcement ofmilitary discipline, and were within the competency and jurisdiction ofthat Government.

It has not been shown that there was a denial of justice, or that therewere any special circumstances or grounds of exception to the gen-erally recognized rule of international law that a foreigner within theUnited States is subject to its public law, and has no greater rights thana national of that country. [Italics mine.]

The last clause of the last paragraph above quoted may not be veryhappily worded, but I do not think that the learned tribunal meant to giveexpression to the view that domestic laws can not contravene internationallaw.

Domestic laws may by their operation on property rights of aliens con-travene international law. And in any case in which an international recla-mation is predicated upon such an infringement of the law of nations it is ofcourse not a defense to say that a court of last resort has properly construeda law to authorize action against which complaint is made. But in reachinga conclusion whether an international delinquency has been committed inany such case, in which the decision of the court as to the meaning of the lawis accepted as final, it is proper to determine whether the law has authorizedor sanctioned a wrongful act. As I have observed, it is conceivable thatdomestic law by its sanction of personal injury may, under given circum-stances, offend broad standards of governmental action which civilizednations may be expected to observe. And in a case involving an allegedpersonal injury permitted by domestic law of a nation, it is a proper test ofthe nature of the alleged wrongful act to compare the law of that nation withsimilar laws of other nations.

No attempt was made by counsel for the Mexican Government to make acomparison of the laws of the United States with the laws of other countries,not even with the laws of Mexico. Certain precedents were cited by counselwhich it was argued furnish authority for a pecuniary award in the presentcase, among them the tribunal's decisions in the claims of Jesse WalterSwinney and Nancy Louisa Swinney,3 Docket No. 130, and Dolores GuerreroVda. de Falcon,4 Docket No. 278, and the shooting in 1915 of two youngAmericans by Canadian soldiers in Canadian waters at Fort Erie. In myopinion none of these cases has any value in showing liability on the UnitedStates in the instant case.

In the Swinney case, a young man in a row-boat, not engaged in commit-ting any offense, was shot by Mexican officials from the Mexican shore of theRio Grande because, as was alleged, he did not respond to an order to comeover to the Mexican side. On being hailed he explained that he was engagedin no wrong-doing. In the Falcon case the record disclosed that a soldiertestified that he and a companion deliberately shot at unarmed naked persons

3Infra, p. 562. 4Infra, p. 566.



swimming in the Rio Grande, one of whom was killed. The shooting whichtook place in Canadian waters was directed at two young men who werethought to be engaged in hunting ducks out of season. It seems reasonablyclear that the men could have been apprehended without the use of firearms,and that, if they failed to respond to an order to come to the shore, they tookbut a few strokes in their boat before they were shot, one being killed andone seriously injured. In a note addressed by Secretary of State Bryan tothe British Ambassador at Washington it was stated that the offense forwhich the arrest of the two men was sought was a minor one; that no resist-ance was offered or violence threatened by the injured men; that the killingand wounding were inflicted intentionally, or, if not, through the gross andculpable negligence of the officers and soldiers in the most reckless mannerin which they used their arms; and that the actions of the soldiers were with-out justification or excuse. It may be pertinent to note that even in thesecircumstances, the British Government did not admit liability, but statedthat "as an act of grace suitable compensation should be made to relativesof the deceased and to the injured man." And although the United Statesrequested compensation, the British Government, instead of making suchcompensation to the United States, effected a private settlement with the in-jured persons. (Foreign Relations of the United States, 1915, pp. 415-423).

In my opinion the very deplorable act committed by Lieutenant Gulley forwhich the United States is held responsible, has not been accurately describedin the written or oral argument advanced by the Mexican Agency nor in theopinion of the two other Commissioners.

In discussing the available evidence with regard to the shooting of the littlegirl by Lieutenant Gulley, it is pertinent to bear in mind that we haveevidence of two kinds: first, that accompanying the answer consisting in themain of the lengthy opinion of the Board of Review analyzing the lawapplicable to the case, and the proceedings before the court-martial, includingthe evidence produced before the court, and second, the record of proceedingsbefore Mexican judges in the State of Tamaulipas, which accompanies theMexican memorial.

In the opinion of the two other Commissioners brief quotations are madefrom the Mexican records to the effect that inhabitants on both sides of theriver frequently crossed without looking for authorized shallow parts orpassages. On this point, however, it seems to me that it is also pertinent tonote that a judge states that "it is well known . . . that on account of thewar between the United States of America and Germany, there were taken bythe former nation drastic measures on its frontiers to avoid the entrance ofspies, among which measures was that of having patrols of American soldierssurvey the length of the Bravo" and "that in spite of such orders" (italicsmine) residents of Mexico "have defied the perils and dared to cross to theAmerican side without a permit or passport." A Mexican judge beforewhom a number of Mexicans appeared conducted an investigation as a result


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of which it may be said that he in a sense found Lieutenant Gulley to beguilty of what he called the "crime of homicide" also describing the shootingas "wickedness or as an atrocity." Before the court-martial there appearedthe defendant, of course, and also both American and Mexican witnesses.

It is stated in the Mexican brief (p. 2) that Mexican witnesses all agreedthat the soldiers on the American side "fired for no reason whatsoever, andthus killed the child." And in the Mexican reply it is stated that, althoughtechnically a state of war between Germany and the United States existed atthe time of the shooting, it is evident that the persons who accompanied thelittle girl who was killed "could not have had the intention of crossing theRio Bravo for the purpose of causing harm or injury to the United States,for as it is proved by the testimony of the witnesses before the Americanauthorities, found in Annex I of the memorial, the sole purpose of the familyof Concepci6n Garcia was to return from the American side, where theywere, to the Mkexican side of the river, and it was only with this purpose thatthe temporary raft which served to take them across was made." Leavingaside discussion of the instructions which Lieutenant Gulley had with respectto the enforcement of laws and regulations incident to a state of war, it isvery pertinent to remark with regard to this statement in the reply that ofcourse the officer had no knowledge as to who were on the raft or what theirpurposes were. He was about a mile away when he first saw the raft. Herode hurriedly towards it. He was unable to challenge the persons on boardby calling to them. While he clearly had no knowledge as to the mission ofthe persons propelling the raft, it is proper to bear in mind that he undoubt-edly had information with regard to conditions on the border such as may bebriefly indicated by quoting from a report of the Commissioner General ofImmigration of the United States. In one portion of this report which wasmade at a time when vigilance on the border was not considered to be asimperative as it was when the shooting occurred, the Commissioner quotesthe following from the report of an inspector on the border:

There is little difficulty in smuggling an alien from Mexico across theline into this country, or in the alien entering unassisted, for thatmatter. The river is not wide at certain seasons of the year and in someplaces it becomes a mere trickle. This office estimates that there areat least 100 persons living on the Mexican side opposite points in thisjurisdiction who earn their living chiefly by operating illegal ferries andbringing aliens to the United States. The work of the officers here inthe past two years in apprehending and destroying boats used as ferrieshas largely forced them to abandon their large boats made of lumberand of galvanized sheet iron and to resort to "patos," as they areknown among the smuggling fraternity, made of a willow frameworktied with willow withes and covered with a cheap canvas or wagonsheet. This canvas can be tied on or taken off the frame in a moment,and then carried under a man's arm. The frame can easily be hiddenin the brush, and if it should be found and destroyed, 15 minutes'



work with a machete (and no one ever saw a Mexican of this classwithout a machete) will construct another.

These illegal ferrymen oftener than not own a small farm on theriver. When an alien, Mexican or European, gentleman, criminal, orbolshevik-it makes no difference-wants to cross, this ferryman merelyremoves his boat cover from his wagon or haystack where it serves himbetween times, proceeds to the river and pulls his frame from the brushwhere it has been hidden, ties on the cover, places it in the water, andis ready to, and actually does take his passengers, and often a few casesof contraband liquor also, to this country. Before placing his boat inthe water he carefully spies out this side, and probably calls to some"piasano" on this side if one is in sight, and ascertains that no "gringo"officers are in that vicinity. Any Mexican resident on this side willcheerfully abandon his work and spend a day if necessary watching forofficers, to aid this boatman, with whom he is always in sympathy, andalso for the reason that this kind of work does not call for much effort.In spite of the inhibitions of section 8, or of any other section, whichthe ferryman is probably ignorant of and which, in any event, he wouldcheerfully ignore, he more often than not successfully lands his pas-sengers and returns to the other side and safety, and his passengers gotheir way. (Annual Report, 1924, pp. 16-17.)

In another portion of the report the Commissioner says:

This work of the mounted or patrol inspectors is attended by con-siderable hardship and much danger, as it is often necessary for themto remain on duty long hours without opportunity for rest or sleep,in inclement weather, and the smugglers, who very frequently transportintoxicating liquor or narcotic drugs with the aliens, are desperatecharacters. They go armed and shoot at the command to halt in thename of the law, preferring to commit murder rather than be appre-hended and face the probability of serving a prison sentence. Previousannual reports have related the details of the killing and wounding ofimmigration officers by smugglers. (Ibid., p. 19.)

In discussing acts of soldiers for which a government may be held liable,the Mexican brief cites an extract from a note addressed by Secretary ofState Frelinghuysen to the American Minister in Peru under date of Decem-ber 5, 1884, with regard to the shooting of an American citizen in Peru by aPeruvian soldier. It is pertinent to note with regard to the character of actsof this kind for which a nation may be held responsible that Mr. Freing-huysen describes the shooting as "an act of outrageous violation, by an agentof the Government while in its line of his duty, of a right which it was hisbusiness to protect." In my opinion, Lieutenant Gulley's act, howeverdeplorable it is-and there may be reason to consider it indiscreet-does notcome within the category of acts such as that described by Secretary of StateFrelinghuysen. It is stated in the brief (p. 15) that "even granting forpurposes of argument that the soldier would not be guilty of the crime, andthat really the orders prohibiting him from firing on unarmed persons wouldbe unknown to him, still it could be held that the responsibility of theUnited States can be clearly established in international law." In support


JUDICIAL DECISIONS

of this contention citation is made to an account in Moore's Digest ofInternational Law of the killing by Chinese soldiers of Lewis L. Etzel, anAmerican war correspondent, and the offer of the Chinese Government to payan indemnity of $25,000 Mexican currency. The account of this case is verybriefly given, and it is pertinent to note that the killing is described as an actof "crindual carelessness." Citation is further made in the brief of a requestmade by the United States of the Honduran Government for the payment ofan indemnity of 810,000 to the relatives of Frank Pears, an American citizen,who was shot in Honduras in 1899 by a sentinel. It is proper to note withrespect to this case that the United States after investigation declared thatthe killing of Mr. Pears "could be regarded as nothing but the cruel murderof a defenseless man, innocently passing from his office to his house."Certainly the act committed by Lieutenant Gulley cannot be regarded as"cruel murder," and after a study of the elaborate opinion of the Board ofReview in which evidence and law are considered to my mind with great careand accuracy, I do not believe that the shooting can properly be describedas "criminal carelessness," although I am inclined to conclude from suchevidence as is available that the officer might have acted with greater dis-cretion and prudence.

It seems to me that the statement in the opinion of the two other Com-missioners to the effect that "the record only shows that the officer expectedthe delinquents to be engaged in importing barrels of the native liquor called' mescal,' all other suppositions as to atrocious acts they might have been per-petrating being mere inferences," fails to take account of important mattersin the record to which the Board of Review attached considerable weight inarriving at its conclusions. It may be that smuggling was the principalthing which Lieutenant Gulley had in mind in endeavoring to arrest personson the raft. It is proper, however, to bear in mind that the Board of Reviewcalls attention to at least three kinds of laws, the enforcement of which wasenjoined on patrols, namely:

1. Legislation enacted in 1918 (40 Stat. L. 559) with respect to restrictionson the entry into or departure from the United States by aliens. It couldnot of course be expected that legislation of this kind would be repealed manymonths before the Treaty of Versailles had been signed. A portion of itrelating to the entry of aliens into the United States is still in effect (41Stat. L. 1217) and I assume that similar legislation is generally in forcethroughout the world today.

2. Legislation with respect to prohibition on the importation of arms andammunition into Mexico (37 Stat. L. 630).

3. Legislation regarding matters relating to immigration and smuggling.In discussing the position in which Lieutenant Gulley was placed, the

Board of Review deemed it to be proper also to take cognizance of informa-tion which is stated in the board's opinion as follows:

It was a matter of common knowledge that propaganda in aid of war



against the United States by the German Government, as well asorganized efforts to procure information of military and other value,had been actively carried on by persons who, having their seat ofoperations in Mexico, had been crossing and re-crossing the border forthis purpose. The safety of the whole people was involved in seeingthat all such acts were suppressed and the offenders brought to justice.

To be sure hostilities between the United States and Germany were sus-pended in April, 1919, but the conclusion of peace was far distant, and itseems to me that the Board of Review acted properly in giving at least someconsideration to the duties devolving upon a soldier during the existence of astate of war.

It was enjoined upon troops engaged in patrol duty to consider themselvesalways on duty, that patrolling was very important and must be performed inthe most painstaking manner, and that perfunctory patrols are useless.

Lieutenant Gulley saw persons violating the law of the United States-and it is not disputed that this was knowingly done. He was not in a posi-tion to apprehend them; he could not hail them by calling to them; and theydid not stop although he repeatedly fired. Unless his testimony and that ofsoldiers with him are considered to be false, he did not aim at the raft. Itmay be pitiable that he shot at all, but it should be borne in mind, as I haveendeavored to point out, that the question which must be considered in theinstant case is whether the laws of the United States, under which shootingin those circumstances is not unlawful, are so at variance with the laws ofother members of the family of nations as to fall below ordinary standards ofcivilization.

In my opinion, the burden must devolve on any one making such a chargeto show convincingly by comparison with the laws of other countries theiniquitous character of the laws of the country against which complaint ismade. To my mind that cannot be shown by brief citations from domesticlaw such as are given in the opinion of the two other Commissioners. Nor doI perceive the relevancy of the citation of Article 46 of the RegulationsRespecting the Laws and Customs of War on Land in the Fourth HagueConvention. An injunction against murder in territory under militaryoccupation stated in five words can have no bearing to my mind on the pro-priety of domestic law dealing with the difficult subject of the use of force inconnection with the repression of crime. This is particularly true in asituation such as that under consideration in which patrol officers were calledupon under unusual circumstances to execute both military and civil laws.The sacredness of human life and the principle that it shall not be unneces-saily taken or endangered are recognized in the jurisprudence of the UnitedStates and are emphasized in the opinion of the Board of Review whose con-clusions with respect to Gulley's action to my mind are not at variance withthat principle. I have already indicated the view in which I understandthe other two Commissioners concurred that obviously no denial of justice


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