
    THE WASHINGTON LOAN AND TRUST COMPANY ET AL. v. THE UNITED STATES.
    [No. 23193.
    Decided January 11, 1904.]
    
      On the Proofs.
    
    Congress confer jurisdiction upon the court with this direction: “In the event the said court shall he of the opinion that the United States are justly liable, under all the circumstances of the said case, for the losses and damages sustained by the said decedents by reason of the acts of their officers in the premises, the said court shall render judgment in favor of the claimants.” The evidence shows that a consular officer is guilty of arbitrary and illegal proceedings and that the claimants have exhausted their legal remedy against him.
    I. Where the intent of a statute is that a court shall render between litigants a final, judicial judgment at law, or decree in equity, no breadth of language can enable a court to do so except by judicial methods and pursuant to established principles of law or equity. The plaintiff who can not recover according to law, can not attain the final, unquestionable legal right of a judicial judgment.
    
      II.A government is not responsible for the tortious .acts of its officers ' generally. To create such a liability there must be either authorization or ratification.
    III. Authorization can not be inferred from the fact that a consular officer wrote to the Secretary of State telling him substantially what he meant to do and the Secretary made no reply. Ratification can not be inferred from the fact that the Treasury paid to the injured party such money as the Government received from the consular officer.
    IV. In cases where a master would be responsible for the tortious acts of his servant under the ordinary law of agency, such as in a case of marine tort, and Congress confer jurisdiction of the case, ratification may be implied; but where the act of the agent was one for which the ordinary principal would not be liable, no judgment at law can be recovered though jurisdiction be conferred.
    
      The Reporters' statement of the case:
    The claimants first brought a Congressional case in which the court found, and reported to Congress, the facts set forth in the first eight of the following findings. Instead of acting* favorably or adversely to the claimants on those findings Congress passed the act set forth in finding ix. The following constitute the facts now found by the court on the trial of the case under that act:
    I. Aaron Yan Camp and Yirginius P. Chapin were citizens of the United States, residing at Washington, D. C., and Clarksburg, in the State of West Virginia, respectively.
    II. Virginius P. Chapin was appointed United States commercial agent for the Navigators’ Islands by President Fillmore, and acted as such until he was superseded by Aaron Van Camp in 1854, under an appointment by President Pierce. In May, 1855, they formed a copartnership, under the firm name and style of Y. P. Chapin & Co.; built up a large mercantile establishment at Apia, Samoa, consisting of warehouses and storehouses, a pearl shelling depot on the Pennrhyn Islands, and an establishment at the island of Tutuila for purchasing cocoanut oil. Van Camp left Apia on. the 12th of May, 1856, on the U. S. S. Independence for Valparaiso, having appointed Chapin to act as vice-consul during his absence. His depai’ture for Valparaiso was caused by the necessity of his being at that place to look after the disposition of a large amounof propertj'- belonging to American citizens, consisting of the cargo of the American whale ship Rambler, which arrived at Apia in distress in December, 1855. Said ship having been condemned as unseaworthy, her cargo was placed in the warehouses of V. P. Chapin & Co., by Elihu E. Winchell, her master; who, having been unable to dispose of it after a stay of three months at Apia, gave it in charge to Van Camp, with authority to him to make the best disposition of it he could for all concerned; and no opportunity having offered to dispose of the property at a fair price, and after consultation with Commodore Mervine, of the U nited States flagship Independence, it was decided to ship the cargo by the American schooner Eudorus, Henry Seaman, master, to V alparaiso, the schooner having been chartered for that purpose at the sum of $4,000.
    III. After the departure of Van Camp, as aforesaid j but before the departure of the Eudorus, one Jonathan S. Jenkins arrived at Apia, having been appointed several months before to supersede Van Camp as commercial agent for the Navigators Islands, accompanied by Thomas F. Martin and James M. Conway, who claimed to have been injured by Van Camp in certain proceedings taken by him, in his official capacity, with respect to the American barks St. Mary and Elvira, while on the voyage from San Francisco to the Navigators Islands. Jenkins prepared and signed papers, in which he assumed to (¡reate a consular court, and appointed Robert S. Swanston clerk and Samuel J. Agnew marshal. He arrived off the harbor of Apia on the 16th day of May, 1856, and having-learned that Van Camp had left for Valparaiso, and that the Eudorus was in the harbor, laden with property belonging to Van Camp and about to sail' for Valparaiso, sent Martin and Conway on shore to see the British consul and request him -to detain the Eudorus, informing him of the course he intended to pursue against the property of Van Camp. The next day Jenkins entered the harbor, and his marshal, acting under the authority of an order signed by him (Jenkins) bn the 16th of May, 1856, and directing him to take possession and control of “all the property of or belonging to Aaron Van Camp, late United States commercial agent for Apia, wherever it may be found, and of whatever kind or description it maj’ be, and keep the same in safe custody, subject to the order of the court,” proceeded to take possession of the property laden on board the Eudorus and to seize the private dwelling of Van Camp, together with the buildings, merchandise, etc., belonging to Y. P. Chapin & Co., in which Van Camp had an interest.
    IY. Soon after landing at Apia, Jenkins also appointed three so-called associate judges to sit with him in his consular court in two proceedings, styled cases “in admiralty,” one in the name of Thomas F. Martin and the other in the name of J. M. Conway against Van Camp, the proceedings of which court appear in the following so-called orders and decrees:
    [United States consular court for tlie consulate of Apia; in admiralty. T. JP. Martin v. A. Van Camp, in rem, before Jonathan S. Jenkins, U. S. consul, presiding judge; Horace D. Dunn, Henry Seaman, Josiah B. Leeds, associate judges.]
    “The court do find that the plaintiff, T. F. Martin, has fully proved the illegal seizure and sale of the bark St. Mary and property thereon, and the confiscation of the proceeds by the above A. Van Camp, late United States commercial agent for Apia.
    “The court do therefore award unto the said T. F. Martin the sum of eight thousand dollars, in full of the value of the said vessel and property thereon belonging to the said T. F. Martin.
    “And do further award the sum of two thousand five hundred dollars ($2,500) as damages in consideration of the losses, detriment, and distresses directly entailed upon the said plaintiff, T. F. Martin, by the aforesaid illegal acts of the said A. Van Camp, late commercial agent for the United States for Apia.
    “Given at the United States consular court of Apia, under the consular seal and the signatures of the aforesaid presiding and associate judges, the 28th day of May, 1856.
    [SEAL.] “JONATHAN H. JENKINS,
    “¿7. A. Consul and Vice-Commissioner for
    
    “ the Consulate of Apia, Presiding Judge.
    
    “Henry Seaman,
    “Josiah B. Leeds,
    “Horace D. Dunn-,
    “ Associate Judges J
    
    
      [Court of the United States consulate, Apia, Navigators Islands. Jonathan S. Jenkins, U. S. consul, presiding judge. In the cause in admiralty, J. M. Conway v. Aaron Van Camp. In rem.]
    “The undersigned associate judges of this court, after a patient hearing, and upon a careful examination of the testimony offered in the case of J. M. Conway v. Aaron Ya/n Camp, relating to the alleged seizure and sale of the New Grenadian bark Elvira, which said alleged seizure and sale transpired within the jurisdiction of the consular court of this place, have come to and can give no other opinion or give other decision than the following:
    “ (1) It will be seen by reference to the testimony (all of which was offered on behalf and on the part of said plaintiff, and may, therefore, be supposed to be the most favorable to his, the said plaintiff’s interests) that the evidence of many of the witnesses conflict upon many essential points of time, of occurrence, and of mode of procedure and action of many of the parties interested, or said to have been interested, in the transaction connected with the complaint.
    “(2) That no testimony has established the fact that the captain of the said bark was forced to deliver up the possession of the said vessel or that he did so.
    “ (3) That according to the testimony of the mate, Mr. Att-wood, and others, the captain of said bark willfully neglected to take the necessary steps to insure the completion of his voyage, all of which we believe to have been purposely and willfully neglected by him.
    “(4) That the testimony shows that the said captain was acknowledged and obeyed by his crew of said Elvira for at least two (2) months after his arrival in this port, 'and that bills for supplies furnished to said vessel and for labor done on said vessel for some time after her arrival were refused payment by Aaron Van Camp unless they were properly certified to by Captain E. Alley, the master of the Elvira, upon whose endorsement they were paid by Aaron Van Camp.
    “(5) That the vessel was under a foreign flag, and that' therefore Aaron Van Camp, as U. S. commercial agent, had no control of the bark Elvira in his official capacity, and could not therefore compel her sale or give proper title.
    “(6) That from the testimony the master of the Elvira appears to have willfully misrepresented that a Mr. Colby was her owner, and.-by his general conduct in the matter appears to have been the principal in the said alleged fraud.
    “ (7) That it appears from the testimony that Captain Alley had the papers of the Elvira in his possession for a considerable time after his arrival, amply sufficient to have refitted and sent her to sea while she was yet in his possession.
    
      “(8) That the said Aaron Van Camp did pay bills for expenses on acount of the bark Elvira, such as seamen’s wages and other claims, and that the amount realized from the alleged sale was so small as to leave a fair inference that the amount alleged to have been paid by the purchaser was little, if any, more than said charges, no moneys, however, having been testified to as having been received at the sale.
    “ (9) That from the testimony taken as a whole the alleged fraud connected with said vessel in Apia appears to have been committed by and with the consent of Captain Alley, who, as master of the Elvira, represented and acted as agent for her owners, and that by his act he has committed barratry, and is therefore personally answerable.
    “ (10) That the said bark Elvira is liable to seizure by her lawful owners wherever found, and such proceedings would be upheld in any civilized country; therefore, in accordance with the before-stated reasons, we, the undersigned associate judges of the United States consular court, can come to no, nor can form any, other decision than the following, viz: '
    “That the offense was barratry of master, and that no just cause of complaint can lay against the said Aaron Van Camp, and that therefore no damages can be given to J. M. Conway, plaintiff, to be paid from the property of the aforesaid Aaron Van Camp.
    “In witness whereof we have hereunto set our hands under the seal of the consulate of Apia, on-this 31st day of May, 1856.
    “Horace D. Dunn,
    “Josiah B. Leeds,
    “Henry Seaman,
    “ Associate Judges of the TJ. 8. Consular Court of Apia.”
    
    [United States consular court, Apia, Navigators Islands. Jonathan S. Jenkins, United States consul, presiding judge. In the cause in admiralty, J. M. Conway v.. Aaron Van Camp. Inrem.]
    “I, Jonathan S. Jenkins, United States consul for the consulate of Apia, believing the testimony in the above cause fully proves that Aaron Van Camp, knowingly and willfully, acting as the United States commercial agent for this port of Apia, did wrongfully, on or about the 2d day of July, 1855, sell and hold from the possession of said J. M. Conway the bark Elvira, I therefore grant the said J. M. Conway six thousand five hundred and eighty-five dollars ($6,585) damages and the costs in the case; but as the associate judges in this case have differed with me in opinion, I shall hold this judgment as subject to the confirmation of the United States Government.
    
      “ The property of the said Aaron Van Camp shall be sold and the proceeds held in my hands awaiting’ the action of the Government of the United States in the matter.
    “Givenunder my hand and the seal of my consulate this 31st day of May, 1856.
    [seal.] “ Jonathan S. Jenkins,
    
      “U. S. Consul, Vice-Commissioner for the
    
    
      “ Consulate of Apia, Presiding Judge!
    
    
      “ Court of the United States Consulate, Apia, Navigators
    
    
      Islands, to Henry Seaman, master of brigantine Huaorus:
    
    “ By virtue of a judgment rendered in this court in favor of Francis Martin, against the property and effects of Aaron Van Camp, to the amount of ten thousand five hundred dollars and costs, and also of a judgment rendered by the presiding judge of the above court in favor of James M. Conway, for the sum of six thousand five hundred and eighty-five dollars and costs, against the property and effects .of Aaron V an Camp, you are hereby commanded to deliver into the possession of the United States marshal for this consulate the cargo on board of the brigantine Eudorus, under your command, the said cargo being consigned to and the property of the aforesaid Aaron Van Camp.
    “ Given under my hand, and seal of the consulate of Apia this 31st day of May, 1856.
    [seal.] “ Jonathan S. Jenkins,
    “ U. 8. Consul and Presiding Judge
    
    
      “ of the Consular Court!
    
    [U. S. consular court, Apia, Samoa, 30th May, 1856. T. F. Marlin v. A. Van Camp. Cause in admiralty.]
    “ To the marshal of the United States for the consulate of Apia, greeting:
    
    “ You are hereby ordered to advertise and sell the whole of the property of A. Van Camp, within this consulate, or such portion of it at public sale as shall be necessary to defray the judgment in the above cause in favor of complainant and the costs incurred in the said cause, and make due return to the court thereof¡
    “Given under my hand and seal this 30th day of May, 1856, in this port of Apia.
    [seal.] “Jonathan S. Jenkins,
    “ IT. 8. Consul and Presiding Judge
    
    
      “of the Consular Court.”
    
      [U. S. consular court, Apia, Navigators Islands.]
    “ To the marshal of the United States for the consulate ofAjpia, greeting:
    
    “You are hereby ordered to take into your possession all the books used by the firm of V. P. Chapin & Co., viz, books of entry of the different operations connected with the business, and hold them safely in your possession, subject to the orders of this court.
    “ Given at Apia this 29th May, 1856.
    “By order of the court.
    [seal.] “Jonathan S. Jenkins,
    
      U.U. S. Consul and Presiding Judge.”
    
    “MONITION EXPRESS AND JUDGMENT.
    “The undersigned, Jonathan S. Jenkins, after a careful examination of the evidence of V. P. Chapin, given in the case of T. F. Martin v. Aaron Van Camp, do adjudge that the said V. P. Chapin has no right, title, or interest in the cargo of the American schooner Eudorus, which cargo, is now lying attached on board of said vessel in this port of Apia, and that the use of the name of V. P. Chapin & Co., as shipper of said cargo, does not, in the face of the evidence of the above-named V. P. Chapin, prove ownership therein to the said V. P. Chapin, but that, by the said evidence and the several shipping papers connected with the cargo, the property belongs solely and entirely to Aaron Van Camp.
    “ And now, in accordance with the above decision, .1 do hereby command the United States marshal for the consulate of Apia to consider the said cargo shipped by V. P. Chapin & Co., in-accordance with this my decision, and to proceed against it as the property of the said Aaron Van Camp, under the order of sale issued to him against the said Aaron Van Camp’s property from this court, and dated 30th May, 1856. _
    _ “Given under my hand and seal of office this 13th day of May, one thousand eight hundred and fifty-six.
    [seal.] “Jonathan S. Jenkins,
    “ U. S. Consxd and Vice-Commissioner
    
    
      ufor the Consulate of Apia.”
    
    
      “The undersigned, judge and associate judges of the consular court of Apia, Samoa, in the Navigators Islands, on examining the papers relative to the whale and sperm oil and whalebone now on board the brig Eudorus, can tind no other conclusion than that it, the said oil and bone, is the property of Aaron Van Camp, the bills of lading being from V. P. Chapin to the said Aaron Van Camp, and the letters of instructions to the supercargo and captain of the said brig being of the same purport as to consignments or ownership.
    “ Given under my hand and the consular seal this 20th day of May, 1856.
    [seal.] “ Jonathan S. Jenkins,
    “ IT. 8. Consul and Presiding Judge.
    
    “Henry Seaman,
    “ Josiah B. Leeds,
    “Horace D. Dunn,
    
      “Associate Judges.”
    [United States consulate, Apia, Upolu. Referee case in reference, Thos. F. Marlin, and J. M. Conway v. Aaron Van Camp. Case in admiralty.']
    
    “We, the undersigned, having being called upon by the United States consular court in full session to inquire into and decide upon the merits of a certain claim of Captain Henry Seaman, of the brigantine Eudorus, for the amount of charter-money agreed to be 'paid to him by Aaron Van Camp upon his delivery in Valparaiso a certain cargo shipped to the order of the said Aaron Van Camp, the said cargo having been seized under a judgment and monition, issued out of the U. S. consular court for this consulate, against the said Aaron Van Camp, in favor of the parties aforesaid, and unliv-ered here in this port of Apia, do decide:
    “(1) That Captain Seaman is entitled to his full charter-money as though he had fulfilled his charter-party, he having already broken ground, and the non-carriage of the said cargo in Valparaiso having been the result of the illegal and wrongful acts of the said Aaron Van Camp, and not of any insufficiency on the part of the Eudorus or her tackle, or of any unwillingness on the part of the said Henry Seaman to fulfill his contract, and that the said Seaman was forcibly, by orders of the said court, dispossessed of the said cargo. Charter-money, as per charter, $4,000.
    “(2) That the 20 log days named in the charter-party do commence from the day the vessel was detained, viz, 17th day of May, inclusive.
    “ (3) That the expense of discharging the cargo do fall upon the said cargo, Captain Seaman having refused to unliver the freight, and having ordered his crew to refrain from aiding in the same.
    “ Given under my hand and the seal of the consulate at Apia this 2d day of June, 1856.
    “We acknowledge to have received our fee of $10, as allowed by law.
    [seal.] “Jonathan S. Jenkins,
    “ U S. Consul, Presiding Judge.
    
    “Jeremiah Norton,
    
      “Master of Louisiana.
    
    “ JosrAH B. Leeds,
    “ Master of Jeanette.’’’’
    
    “United States Consular Court,
    “Apia, Navigators Islands.
    
      <‘iThe President of the United States of America to the marshal of the United States for the consulate of Apia, his deputies, or any other, greeting:
    
    “You are hereby commanded to take possession of, and under your control, the property of, or belonging to, A. Van Camp, late United States commercial agent for Apia, wherever it may be found, and of whatever kind or description it may be, and keep the same in safe custody, subject to the order of the court.
    “ Given under my hand and seal the 16th day of May, 1856. [SEAL.] “JONATHAN S. JENKINS,
    
      ‘ ‘ U. S. Consid and Vice- Commissioner for the
    
    • Consulate of Apia.’’’
    
    “United States Consular Court,
    “Apia, Navigators Islands.
    “ The President of the United States of America to the marshal of the United States for the consulate of Ap>ia, his deputies, or any other, greeting:
    
    “You are hereby commanded to take possession of the cargo of the brigantine Eudorus, now lying in this harbor, and hold the same in safe custody, subject to the order of this court, and also to deter the said schooner from leaving port.
    “ Given under my hand and seal the 16th day of May, 1856, and the year of our Independence the eightieth.
    
    [seal.] “Jonathan S. Jenkins,
    “ U. S. Consul and Vice-Commissioner for the
    
    “ Considate of Apia, Navigators Islands.”
    
      “Court of the United States Consulate,
    Apia, Navigators Islands.
    
      “To the United States marshal of this consulate, greeting:
    
    “ You are ordered to proceed on board the schooner Eudo-rus, now lying detained in this port by virtue of an order from the United States consul here, and, taking such force as you may require, break open the hatches and sell and deliver the aforesaid cargo according to. the judgment and monition to you issued from the United States consular court of the consulate, dated the 29th day of May, 1856.
    “Given under my hand and the seal of the consulate this 2d day of June, 1856.
    [seal.] “Jonathan S. Jeneins,
    
      “U. S. Consul and Presiding Judge
    
    
      “of the Consular Court.”
    
    “U. S. Consular Court,
    “Apia, Navigators Islands..
    [X. M. Conway v. Aaron Van Camp. In admiralty.]
    
      “To the marshal of the United States for the consulate of Apia, greeting:
    
    “ You are hereby ordered to advertise and sell the whole of the property of Aaron Van Camp, within this consulate, that is not now liable to judgment, or such portion thereof as shall be necessary to defray the judgment in the above cause and the costs of the case, and make due returns to this court thereof.
    “ Given under my hand and the seal of the consulate this 31st day of May, 1856.
    [seal.] “Jonathan S. Jenkins,
    
      “US. Consul and Presiding Judge
    
    
      “of the Consular Court.”
    
    “I, Jonathan S. Jenkins, United States consul and vice-commissioner for Apia, Upolu, and the adjoining islands, certify that the foregoing-attached documents are true and correct copies of the originals now on file in the office of the consulate of Apia.
    “Given under my hand and seal of office this 18th day of June, 1856.
    [seal.] “Jonathan S. Jenkins,
    “ U. S. Consul, Apia.
    
    
      “I certify that the foregoing are true and correct copies of the originals now on file in the office of the consulate of Apia.
    “June 18, 1856.
    “James Anderson, OIL”
    
    “notice.
    “On Tuesday next, the 19th inst., will be sold, in pursuance of a judgment issued out of the U. S. consular court in favor of J. M. Conway, the remainder of the interest of A. Yan Camp in the firm of V. P. Chapin & Co., consisting of sundry merchandise, of debts due the said firm, and of their investment at the Pennrhyn Islands, as will be more fully particularized at the time of sale.
    “Jonathan S. Jenkins,
    “ U. 8. Consul.
    
    “Sale to commence at 10 o’clock a. m., at the store of S. Pritchard, esq., Metafell, 15th August, 1856.”
    Y. Pursuant to the foregoing orders and decrees, all the property belonging to the said Aaron Yan Camp individually was sold, and all of the property of V. P. Chapin & Co., at a great sacrifice. The value of this property is alleged by the claimant to have been as follows:
    
      Aaron Van Gamp.
    
    Two lots, with the buildings and other improvements thereon. $16,000.00
    Furniture and library in residence and outhouses (as enumerated by L. D. Haskins and V. P. Chapin). 4, 000. 00
    Collection of shells and natural curiosities. 10,000.00
    Lot of medicines^ medical books, and surgical instruments_ 500. 00
    1 milch cow. 100. 00
    1 consular gig, with masts, sails, and oars, complete. 300. 00
    Total of Van Camp’s property. 30,900.00
    
      V. P. Chapin & Co.
    
    Property taken and sold from on board schooner Eudorus.§21, 942.00'
    Stocks of goods in their store. 15,000.00
    Goods, wares, and other articles in the warehouses and on- the premises of V. P. C. & Co. at Tutuila, Pennrhyn Islands, and
    other places, including a sloop and other boats. 29,192.00
    550 gals, sperm oil, from the cargo of the Rambler. 1, 650. 00
    Account of charges for cooperage, lighterage, storage, etc., on oil from the Rambler.i. 15,000.00
    Total of property of .V. P. Chapin & Co. 82,784. 00
    
      
      Property of Aaron Van Camp, agent for the owners and shippers of cargo on board the Rambler.
    
    56 casks of sperm and whale oil, 200 hbls.' ol which was whale oil. $40,000.00
    63,000 lbs. of whalebone, at 50 cts. 3,150. 00
    43.150. 00
    Less charges of V. P. Chapin & Co. for storage, cooperage, lighterage, etc. 15,000. 00
    28.150. 00
    YI. But the court finds that much of the evidence relied upon by the claimants to prove the loss and value of the propertjr above described consists of ex parte affidavits, letters, and documents, which are not legally competent and must be excluded from the consideration of the court. After excluding such incompetent evidence the court finds the value of the property taken under the proceedings set forth in finding iv as follows:
    Individual property of Aaron Van Camp. $17,400.00
    Property of V. P. Chapin & Co. 38, 700. 00
    Lien of Chapin & Co. on property of the Rambler. 4, 000.00
    60,100. 00
    VII. The property claimed bjr Van Camp as agent for the owners and shippers of the Rambler was of considerable value in excess of the lien of Chapin & Co. for lighterage, storage, cooperage, etc., which the court finds to have been $4,000, as set forth in finding vi. But the said owners and shippers have not appeared as claimants or otherwise, nor does it appear that they ever made any demand on Van Camp for the property or sought to hold him liable therefor.'
    VIII. In 1858 the claimants brought two suits in trespass de bonis asportatis against Jonathan S. Jenkins for the property before described in the late circuit court of the District of Columbia. The defendant appeared in person and bjr counsel and defended. On the 27th of October, 1859, the cases came to trial, and a verdict was found for the plaintiff in each case as follows:
    
      Aaron Van Camp v. Jonathan S. Jenkins. $63,223.00
    
      Aaron Van Camp and Virginius P. Chapin v. The same. 63,408.00
    
      A writ of fieri facias was issued against the property of Jenkins in each of the above cases, which on the 18th of May, 1860, was returned wholly unsatisfied. It does not appear that the claimants have ever received anything upon either judgment. Jenkins, the defendant, is now deceased,
    IX. The court, adopting the foregoing as part of the findings herein, further finds that the case is now before it in pursuance of an act entitled “An act for the relief of the heirs of Aaron Van Camp and Yirginius P. Chapin,” which was approved February 6, 1903, and is as follows:
    “That the claim of Aaron Van Camp and Yirginius P. Chapin against the United States (Congressional case numbered one thousand and forty-nine), the findings of fact in which were transmitted to the House of Representatives by House Miscellaneous Document Numbered eighty-one, Fifty-first Congress, second session, is hereby referred to the Court of Claims, to hear and determine the question of the liability of the United States for the losses found by said court, in its said sixth finding of fact, with jurisdiction to hear and determine the same upon the principles of law and equity and in compliance with the rules and regulations of said court.
    “And in the event the said court shall be of the opinion that the United States are justly liable, under all the circumstances of the said case, for the losses and damages sustained by the said decedents by reason of the acts of their officers in the premises, the said court shall render judgment in favor of the claimants for the amount found to be due by its sixth finding of fact in the said Congressional ease numbered one thousand and forty-nine, as set forth in the report of the said court to the Speaker of the House of Representatives on January eighth, eighteen hundred and ninety-one: Provided, That no statute of limitations shall be pleaded in bar of the recovery of said claim: And provided further, That in determining the question of the liability of the United States the said court shall consider the testimony submitted to it in the investigation of said Congressional case numbered one thousand and forty-nine, together with all affidavits and documents; also the reports of officers of the State and Treasury Departments of the United States in the settlements of accounts oj the officers of the United States in connection with the said claim.
    ‘ ‘ And furthermore, that if the judgment shall be rendered against the United States for the amount found and fixed by said court in said sixth finding of fact, to wit, the sum of sixty thousand one hundred dollars, the same shall be paid, out of any money in the Treasury of the United States not otherwise appropriated, to the legal representatives of the said Aaron Van Camp, deceased, and the said Virginius P. Chapin, deceased, as their respective interests may appear, and the new action to be brought under the provisions of this act shall be in the name of said legal representatives.”
    X. That the Washington Loan and Trust Company of the District of Columbia was duly appointed, on the 16th day of January, 1900, as the administrator of the estate of Aaron Van Camp, deceased, and that Mary M. U. Chapin and Rua P. Chapin were, on the 23d day of February, 1893, duly appointed administrators of the estate of Virginius P. Chapin, deceased.
    XI. It appears from certain documents to be found in the record that as soon as the said Jenkins received his commission as consular agent, and before leaving San Francisco for the post of duty, he made known to the United States district attorney for the district of California and to the Secretary of State the fact that he considered himself clothed with extraordinary powers. In a letter to the district attorney, written at San Francisco, and dated 18th of February, 1856, he calls attention to the act of Congress of the 11th of August, 1818, for carrying into effect certain provisions in relation to the right of extraterritorial jurisdiction of United States consuls contained in the respective treaties between the United States and China and the United States and the Ottoman Porte, and requests to be advised whether in his position as United States consul at Apia, in the Navigators Islands, he shall be justified in apptying the provisions of the said act to the fullest; extent to the territory within the limits of his consulate. In' a letter written at San Francisco, dated 20th of February, 1856, and addressed to Hon. William L. Marcy, Secretary of State, he says:
    “I beg to draw your attention to the inclosed copy of a communication addressed by me to the United States district attorney for the district of California, wherein 1 beg to be advised as to the bearing of the act or Congress of 11th of August, 1848, relating to extraterritorial jurisdiction of United States consuls in China and Turkey, as regards the territories included in the limits of ni3r consulate. Mr. Inge, during a personal interview, told me that there was no question but that the áct alluded to included my position in its application, and that a written opinion from him on the matter would be supererogatory. Under these circumstances I shall have no hesitation in acting in accordance with Mr. Inge’s opinion so expressed until I receive direct instructions on the point from the Department of State.”
    Neither the said district attorney (Mr. Inge) nor the Secretary of State responded to the said letters of February 18 and 20, 1856.
    XII. The report of the Treasury Department bearing date January 21,1890, shows that in the settlement of his accounts as consul the said Jenkins charges himself on the 30th of September, 1856, with “$530.96 cash received from the clerk of the consular court, being the balance of the estate of Aaron Van Camp.” It also appears from said report that by the advice of the Department of State, and by the action of the Treasury Department, the sum of $621.23 was paid to Aaron Van Camp on the 17th of December, 1859, and on May 12, 1860, the further sum of $262.25 was paid to him. And, so far as disclosed, no other restitution has been made to said Van Camp or his estate, and none whatever has been made to said Chapin or his estate.
    Xin. From the facts, as here found, the court finds that, if the claimants are entitled to recover, there is due to the estate of Aaron Van Camp from the defendants the sum of thirty-eight thousand seven hundred and fifty dollars ($38,750) and similarly due the estate of Virginius P. Chapin the sum of twenty-one thousand three hundred and fifty dollars ($21,350).
    
      Mr. John Goode and Mr. Ileber J. May for the claimants. Mr. Edward E. Hobncun, and Mr. J. II. McGowan were on the brief:
    We submit that it was the plain duty-of the Secretary of State to instruct Mr. Jenkins, without delay, that he had entirely misconceived the nature of his office and the extent of his powers; that the act of August 11, 1848, had no application whatever to the Navigators Islands, that its only purpose was to carry into effect the provisions of certain treaties' between the United States and China and Turkey. The Department of State failed to perform the duty incumbent upon it, as is shown by a subsequent communication addressed to it by the said Jenkins, dated August 11, 1856, in which he pleads confession and avoidance and makes a lame and impotent attempt to palliate and excuse his illegal assumption of power and his unparalleled outrages upon the rights of helpless American citizens. It seems from the letter referred to that he considered it necessary to defend himself before any accusations had been brought, thus furnishing a striking-illustration of the truth, that “the guilty flee when no' man pursueth.” We submit that the United States, having had full notice of the purpose of the said Jonathan S. Jenkins to overstep the bounds of legal authority in his capacity of commercial agent, and to perpetrate the grievous wrongs complained of, and having adopted no measures to prevent the same, must be taken to have acquiesced, and thereby sanctioned these most extraordinary proceedings. We submit, therefore, that the defendants, by this policy of non-action, under circumstances which made it their manifest duty to act, have rendered themselves justly liable to indemnify the petitioners for the losses and damages sustained.
    The act of Congress under which this suit has been instituted provides that the claim is hereb}'- referred to the Court of Claims with jurisdiction to hear and determine the same on the principles of law and equity. It becomes, therefore, the duty of the court to consider the case from an equitable as well as a legal standpoint. The province of equity, as is well known, is to relax the rigor of the law and to permit an appeal to the conscience, which is denied in the courts of law. The principle by which its exercise is regulated is that of affording-an effectual remedy where the remedy at law is imperfect. Another well-known principle of equity is that the power which has inflicted an injury should redress it. The decedents in this case suffered solely in consequence of the wrongful acts of a United States officer of which the Government was apprised and might have prevented by timely intervention. In their memorial to Congress they say:
    “ The wrongful acts were perpetrated in the name and under the assumed authority of the United States. The flag of the United States floated over the room where the illegal court sat. The seal of the United States was appended to the illegal documents. It was literally the power of the United States which crushed your memorialists. The assumption is fair that if Jenkins had not been commissioned consul and sent to Apia, .the great misfortune which has overwhelmed your memorialists would have been spared to them, and they feel that they are asking nothing more, than what the Government owes to its own citizens when they ask to be remunerated for losses which they have suffered in consequence of the action of the Government in conferring its power upon an incompetent if not a wicked man.”
    While it is true, as a general rule, that governments are not responsible for the illegal acts of their agents, we submit that the rule can not properly be applied to cases not embraced within the reason upon which the rule is based — “cessante ratione, cessat ipsa lex.” What is the reason of the rule under consideration? It is obviously the following: In all well-regulated governments if a public official violates the law the courts are always open, and it is the right and the duty of an aggrieved to invoke their aid and protection. If a wrong should be threatened, he may apply to the court for an injunction to prevent it. If a wrong should be perpetrated, he has his right of action to recover damages. But if he should neglect to perform this duty, and should fail to invoke the aid of the court in preventing the threatened wrong, or in recovering damages for the wrong done, then there can be no claim on the Government, either at law or in equity, on the part of the aggrieved citizen, because injury complained of was the result of his own failure to* apply to the court to restrain the wrong done, or to afford redress in damages after the perpetration of the wrong. But we submit that the rule can not apply to this case, because there was no court to which application could be made to prevent the injury when threatened, or to redress it when perpetrated. The wrongs and injuries of which these citizens complain were perpetrated in a foreign land, and beyond the pale of civilized society. The sufferers were strangers in a strange land. They were many thousands of miles from their native shores and deprived of the facilities of communication. They were utterly powerless, because there were no courts to which they could appeal, and the only authority recognized by American citizens on the island was vested in this bold and reckless usurper, who perpetrated the outrages with devilish ingenuity and malice.
    
      
      Mt. Felix JBrcmnigcm (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

It must be conceded that the proceedings of the consular officer, as detailed in the findings in this case, were arbitrary and illegal. It must also be conceded that the claimants have exhausted their legal remedy against the 'wrongdoer and have recovered nothing for the wrongs and injuries that were done to them. On these facts the primary question arises whether the Government — whether any government — can- be held liable.

The established principle is that a government is not responsible for the tortious acts of its officers generalty: and it is manifest that in order to create anj^ such liability there must have been either authorization or ratification. (Buron v. Denman, 2 Exch., R., 167.)

In this case there was neither. Whether a Secretary of State can by his words or his silence so authorize the acts of a consular officer as to create a liability on the part of the Government is a question which the court need not consider. The letter written by the consular officer to the Secretary of State, set forth in the findings, and the nonresponse of the Secretary, while it may show very lax administration on the part of the State Department, incompatible with good government and an honest administration in the consular office, falls very far short of establishing an implied sanction for the wrongs and abuses which the consular officer subsequently perpetrated.

As to ratification, the payment into the Treasuiy of a small portion of the money wrung from the deceased claimants by the consular officer on the final settlement of his accounts can not be regarded as a ratification by a responsible branch of the Government. The utmost that could be claimed from it would be that the injured party was entitled to the money; and that right has been recognized by the payment of the money to the deceased claimants.

The question then comes down to the special act conferring jurisdiction upon the court (Act 6th February, 1903, 32 Stat. L., 1065).

This statute refers the claim to the court and confers jurisdiction “to hear and determine the question of the liability of the United States.” But the important and controlling clause is:

4 ‘And in the event the said court shall be of the opinion that the United States are justly liable, under all the circumstances of the said case, for the losses and damages sustained by the said decedents by reason of the acts of their officers in the premises, the said court shall render judgment-in favor of the claimants.”

If by this provision it is intended that the court shall judge the case according to the principles of law or equity which guide and govern courts, it must be held that the United States are not liable. Thej'’ neither authorized the acts complained of, nor ratified them, nor adopted them, nor received a benefit from them. If by the provision it is intended that the court shall pass upon the ethical question whether the United States should assume responsibility for the acts of one of their officers in a distant region of the earth of a most flagitious character, whereby citizens of the United States suffered great wrongs and injuries, it must be answered that courts are not established to determine ethical questions, and that such a question as this case presents is not one for judicial determination, but for the exercise of legislative discretion.

There have been repeated cases in this court where special acts conferring jurisdiction have used the words “just and equitable,” or some such equivalent — cases in which it has been contended that the court could go beyond the confines of the legal and the equitable and do what seemed to it j ust and right. Such contentions have never succeeded. In this case the language of the statute is broader than that of any other statute of like character; but where the intent of a statute is that a court shall render between litigants a final judicial judgment at law, or decree in equity, no breadth of language can enable a court to do so except by judicial methods and pursuant to established principles of law or equity. Be the language of a statute what it may, the plaintiff who can not recover according to law can not attain the final, unquestionable legal right of a judicial judgment.

The case of Cumming (22 C. Cls. R., 345; 130 U. S., 452) was adverted to on the argument; and it is true that there this court rendered judgment in favor of the claimant. But in that case the officers of the United States had not been guilty of a criminal or malicious intent, or even of a personally tortious act. The injury to the claimant had been caused by the superzealousness of internal-revenue officers exercised on behalf of the Government, and as they supposed, in furtherance of its interests. The Government reaped, or might have reaped, a benefit from their zeal. It was a case where the act of the servant was in the business of the master — a case where a master would have been liable for the act of the servant, provided always that the master was not the National Government. Congress have sometimes — as in cases of marine tort — waived the principle that the Government is not liable for the tort or negligence of its officers, and have retroactively placed upon the Government the same responsibility which rests upon every city and town and municipality aud body corporate and shipowner and individual in the country. But such statutes merely waive a special governmental defense; and merely enable the injured party to prosecute his case against the Government as he would prosecute it against any other defendant; and they still leave it incumbent upon him to proceed by legal methods and means, and incumbent upon the court to be guided and limited by established principles of law.

The judgment of the court is that the petition be dismissed.  