Mr. Bayard to Mr. Buck.
Washington, October 27, 1885.
Sir: In your No. 34, of the 19th of September last, you inform this Department that the court of arbitration in Chili has lately published three rules for the decision of claims against the Government, which are as follows:
- (1)
- Bombardment is permissible as long as there is resistance of a rifle.
- (2)
- Acts committed by soldiers or persons connected with the army without orders from their superiors in command do not compromise a Government.
- (3)
- Any proofs taken without notice to Government affected are not admissible as evidence.
The first rule is susceptible of various interpretations, according to the circumstances to which it is sought to be applied, and altogether too vague in its terms to admit of discussion.
As to the second rule, the position of this Government is, that while a Government is responsible for the misconduct of its soldiers when in the field, or when acting either actually or constructively under its authority, even though such misconduct had been forbidden by it, it is not responsible for collateral misconduct of individual soldiers dictated by private malice. But the mere fact that soldiers, duly enlisted and uniformed as such, commit acts “without orders from their superiors in command,” does not relieve their Government from liability for such acts.
With respect to the admission of evidence, to which the third rule relates, the practice of this Department is to require affidavits as prima facie proof of a claim before making any representations to the Government alleged to be in default. So far, by the general practice of nations, the proceedings are ex parte. But if, after the claim has been presented, a commission is agreed upon for its adjudication, testimony in the usual form may be taken, both parties having an opportunity to be present and to examine and cross-examine witnesses. It is not usual, nor, in fact, would it be practicable, to give a foreign Government notice that at a particular time deposition would be taken to sustain a claim to be made against it.
I am, &c.,