"In view of these well-settled principles of public law it is incumbent upon the claimant to make it appear, before he can maintain his claim, that palpable injustice has been done to him or that he has been deprived of such a trial as a citizen of the United States would have received if he had been arrested under similar circumstances and charged with the commission of a similar offense. There is no such allegation in his memorial. On the contrary, it appears from his own statement that he was arrested by order of the AttorneyGeneral of the United States upon suspicion that he had violated the neutrality laws of the United States; that he was promptly admitted to bail; that the evidence against him was sufficiently strong to justify an indictment by the grand jury; that he was regularly tried, according to law, and acquitted by a petit jury, under the instructions of the court, within six months from the time of his arrest. He does not complain that due process of law has not been observed in his case, but that he has been tried for a violation of the neutrality laws, of which offense he was not guilty according to the verdict of the jury and the judgment of the court.

"We have been unable to find any precedent for this claim. If it is a valid claim, then it would seem to follow that every person charged with an offense against the laws and acquitted may sue the state and recover damages. Every government that institutes a criminal proceeding for the enforcement of its laws would do so at its peril. No government could long exist if such a doctrine should be recognized as sound. The mere statement of the proposition is sufficient to demonstrate its unsoundness. If this were a suit against a private individual for malicious arrest and prosecution it would be necessary, in order to maintain the suit, to aver and prove malice and want of probable cause. It is not charged in the memorial that the Attorney-General was actuated by malice in ordering the arrest, or that there was want of probable cause. It is fair to presume that in the performance of an official duty he was governed by the facts and circumstances as they appeared to him. 'A public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion even although an individual may suffer by his mistake.' (Kendall v. Stokes, 3 Howard, 87.)

"But this is not a claim against the Attorney-General; it is a claim against the United States; a fortiori malice and want

of probable cause in the arrest and prosecution complained of should be made to appear. Was there want of probable cause? Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offense. Were not the facts and circumstances disclosed in the memorial calculated to excite the belief, or at least to warrant the suspicion, that the claimant was engaged in violating the neutrality laws of the United States? According to his own statement he came to the United States as the accredited agent and representative of a revolutionary party that was then attempting to overthrow the government of Balmaceda, with which the United States were at peace. He came for the purpose of purchasing the needed arms and ammunition. In the progress of his narrative he says:

"I accordingly bought from Messrs. Hartley & Graham, of New York, five thousand rifles and two million cartridges.

"As I did not have the funds necessary for the chartering of a steamer that might bring them directly to Chile, I cabled the Chilean Government at Iquique to send one of their steamers to San Diego, California. In the mean time I arranged the following plan: I shipped the arms and ammunition to San Francisco, where they were put on board the American schooner Robert and Minnie, which was towed to the Island of Catalina, where she was to await the arrival of the Chilean steamer Itata. Unfortunately the Itata was delayed two weeks, and although she had instructions from me not to enter the port of San Diego, but to await outside for orders, want of coal obliged her to put into San Diego on May 3, 1891.

"The presence of the Robert and Minnie had in the meantime been discovered, and it was suspected that the Itata had come to get the arms and ammunition which composed her cargo.'

"In addition to these suspicious facts and circumstances, as stated by the memorialist himself, showing secrecy in the transaction on his part, it appears that he was regularly indicted by a grand jury, sworn and impaneled in the district court of the United States for the southern district of California to inquire into all offenses against the laws of the United States within the jurisdiction of that court. It is fair to presume that there was sufficient evidence before the grand jury to justify the indictment found by them, and the indictment itself is sufficient to show that there was probable cause. it appears upon the face of the memorial itself that the claim.

As

ant was arrested upon the suspicion that he was engaged in the violation of the neutrality laws of the United States; that he was regularly indicted, tried, and acquitted in accordance with the ordinary proceedings of courts of justice; that he was subjected to no improper treatment while under arrest and to no unnecessary delay in his trial, we are of opinion that he has no legal claim against the United States for damages. If a citizen of the United States, temporarily domiciled in the Republic of Chile, should be arrested under similar circumstances upon a similar charge and in the ordinary course of legal proceedings should be indicted, tried, and acquitted, we apprehend his claim for damages would not be entertained in the Chilean courts. If a citizen of the United States should be subjected to a similar prosecution upon a similar charge or upon any charge in any of the courts of the United States, his suit for damages against the Government of the United States would be wholly unavailing. Certainly it can not be contended that the claimant, a citizen of Chile, and under obligations to obey the laws of the United States while temporarily residing here, is entitled to any greater immunity or protection than would be accorded to a citizen of the United States under like circumstances.

"It is to be regretted that the claimant, an honored citizen of Chile, has been subjected to annoyance and loss; but we are of opinion that the facts stated in his memorial are not sufficient under the treaty or in law to entitle him to recover damages against the United States. The demurrer is sus tained and the claim is dismissed.

Opinion of Mr. Goode, for the commission, case of Ricardo L. Trumbull V. Chile, No. 28, United States and Chilean Claims Commission, convention of August 7, 1892.

Borden's Case.

G. L. Borden, & citizen of the United States, master and seven eighths owner of the American whaling bark Hope On, shipped in November 1882 a Chilean sailor, who, having become mutinous, and having assailed members of the crew with a knife, was several times confined in irons. On January 14, 1883, the sailor, it was alleged, with his consent, was put ashore on the Island of Juan Fernandez, at a point "about two miles from the settlement," and with "food sufficient to maintain him until he could reach the settlement." March 27, 1883, the bark called at Talcahuano to refit for an arctic voyage, but on

April 9, when she was nearly ready for sea, the master was notified that she would not be allowed to depart. April 13 the minister of marine of Chile ordered the bark to be detained till further orders; and on the 16th of the month Borden was arrested and, after a few hours' detention, taken before a judge at Concepción. He gave bail and returned to Talcahuano. Ten days afterward he was ordered to appear at Concepción, which he did. May 15 an order for the release of the bark was given at Borden's instance, but it was countermanded, and the bark was not permitted to depart till May 21, when she sailed under a new master. This master "proved to be incompetent," and the cruise a failure; and in the autumn of 1893 Borden discharged the crew" and sold the bark and outfits for what he could obtain, at a large loss." He himself "remained at Talcahuano until the 27th of June 1883, awaiting notification of his trial, but received none." He then returned to his home in the United States. He claimed damages (1) for his arrest and expenses, and (2) for the detention of his vessel, amounting to $20,130.69.

It appeared by the evidence that no legal proceedings were ever instituted against the bark. The master was arrested for barbarously maltreating the Chilean sailor and for casting him ashore on an uninhabited part of Juan Fernandez Island. It appears, however, that the sailor did not appear as a complainant, but that the prosecution was instituted by the captain of the port of Antofogasta, on the report of the lessee of the island, to whom the sailor told his story.'

The damages for the detention of the ship were estimated at $250 a day, which included $50 for wages, $10 for provi

'Mr. Shields, the agent of the United States, in his final report (p. 70), says:

"The record shows that the district attorney of Chile gave as his opinion to the court that it had no jurisdiction of the crime charged against Borden, and that there was no crime against Chilean law committed by him. The case seems to have been appealed to the supreme court of Chile, which held that the court at Concepción had no jurisdiction of the case, and remanded it to the court at Valparaiso for further proceedings, where the case rested for three years, until a demand by the United States Government for information in regard to it was made, when the papers were found among the private papers of the judge, never having been docketed. Every effort was then made by the Chilean Government to perfect the proceedings against the claimant, without success; the district attorney stated to the court that his honor absolutely lacked data to establish the existence of any offense."

sions, $6.66 for interest and insurance, and the rest for the loss of the use of the vessel. No evidence was offered by Chile on the subject of damages.

Arguments.

The contentions of the parties before the commission have been stated by the agent of the United States as follows:

1

"It was contended on the part of the United States that as there was no complainant and no complaint to serve as the basis for the prosecution, and also no crime against Chilean law alleged, the proceedings were void; that maltreating a sailor on board a United States vessel by the captain on the high seas or within the territorial jurisdiction of Chile is not an offence against the law of Chile nor justiciable in the Chilean courts. (See Field's International Code, p. 433; Kent's Commentaries, p. 204; Pelletier's case (against Hayti), p. 102; United States against Palmer, 3d Wheaton, 610; Opinions of the Attorney-General of the United States, vol. 8, p. 79.)

"A crime committed on board a foreign merchant vessel, in which members of the ship's crew are alone concerned, is not within the jurisdiction of the local courts unless the crime involves a breach of the local peace. (Wildenhus's case, 120 United States. 1; Ortolan, Diplomatie de la Mer, 1, 450; Journal du Droit International Privé, 1876, p. 413.)

"On the question of damages for the detention of the vessel, the following cases were cited: The Baltimore, 8 Wall. 377-385; Cayuga, 14 Wall. 270; Potomac, 105 U. S. 630; Porter, 5 Fed. Rep. 822; 8 Fed. Rep. 170; Brown v. Hicks, 24 Fed. Rep. 811; Parsous r. Terry, 1 Low. 60; The Notting Hill, 9 Pro. Div. 105-113; Parana, 2 Pro. Div. 118; The Mary Steele, 2 Low, 370-374; The Resolute, 8 Pro. Div. 109; Phillimore, pp. 112, 113; The Clarence, 3 Wm. Rob. 283-286; The Gleaner, 3 Asp. Mor. Law cas. 582; Morsden, Collision (2d ed.), p. 115; The James Maury, Alabama Claims, Op. 47; Williamson v. Barrett, 13 How. 101; Walter Pharo, 1 Lowell, 437; Stromless, 1 Lowell, 153; Mayflower, 1 Brown, adm. 376; Transit, 4 Ben. 138; Swift v. Brownell, 1 Holmes, 467; The Antelope, 1 Low. 130; Brown v. Smith, 1 Low 517; Frates v. Howland, 2 Low. 36; Hussey v. Fields, 1 Sprague, 394-396; Knight v. Parsons, ibid. 279; 290 Bbls. Oil, ibid. 475; Baxter v. Rodman, 3 Pick. 435.

"The brief of the agent of Chile claimed that Borden was manifestly responsible for the landing of the sailor on the island of Juan Fernandez, which was within the jurisdiction of Chile. He practically admitted that Chile had no jurisdiction for the acts of claimant on the high seas; that while an error may have been committed by the authorities at Concepción in attempting to take jurisdiction of the case, the error worked no injury to Borden; that the fact that the tribunal at Valparaiso

1 Shields's Report, 71.