
    James S. Wiggins et al v. The United States.
    
      On the Proofs.
    
    
      In 1854 the President sends Commander Hollins with the ship of war Cyane to seek and enforce reparation from, the authorities of Greytown for injuries to American officers and. citizens. Hollins bombards and burns Greytown. It is suggested to him that the inhabitants may fire 21,000 pounds powder stored near the Transit Company’s buildings at Punta Arenas He therefore seizes the powder and destroys it. The government approves his act in the destruction of Greytown. Subsequently he reports concerning the destruction of the powder. The President in his annual message refers to the affair of Greytoion and 
      
      commends the energy and discretion of Hollins. The powder destroyed was the property of Boston merchants, shipped to a consignee who was to share in the profits. The Transit Company was an American association and one obj ect of Hollins's expedition was to protect it. Greytoion was occupied chiefly ly marauders and freebooters.
    
    I. The government is liable for property taken to be destroyed as for property taken to be used. Grant's case, 1 C. Cls. R., p. 41, reaffirmed.
    II. The adoption by the government of the act of a naval officer who has destroyed private property makes it an act of State, as much so as if he had held precedent authority. For it the nation and not the officer is to be deemed responsible. The case of Buron v. Denman, 2 Exch. R., 167, , examined.
    III. Where a consignee has no interest in property taken by the defendants save a contingent share in the profits of the venture, and the proofs show that no profits were realized, the consignors may bring an action against the government in their own names.
    Mr. T. J. D. FdlleR for tbe claimants :
    The case now stands before the court on the original petition alone, with all claim for any other property than the “powder ” stricken out.
    The testimony of Hollins relates to the circumstances attending the destruction of the powder, and the testimony of Harrington and Groves to the title of the powder when destroyed.
    The testimony of Harrington and Groves tends to establish the following facts, viz :
    That in October, 1851, Dexter, Harrington & Co., purchased the powder (being 21,000 pounds) of Gilbert G. Newhall, of Boston, on their own sole credits, and shipped it to New York, where it was repacked in ten cases, and from thence shipped per schooner Brinker-hoff to Greytown, consigned to one Wm. H. DeForest, as the agent or factor of Dexter, Harrington & Có., for sales and return.
    That the assignees took possession of this property, including the powder, and, out of the assets of the bankrupts, paid for it, and that, subsequently, DeForest released and relinquished all his contingent interest in th.e whole Greytown adventure to the assignees, (including the powder,) and acknowledging his agency and factorship therein from the beginning.
    That the powder had been contracted to be sold to the Nicaraguan government, but had not been delivered, and was stored at Punta Arenas awaiting payment. That Punta Arenas is outside of the municipality of Greytown and within the jurisdiction of the sovereignty of Costa Bica, on the left-bank of San Juan river, as you enter the port.
    The evidence of Hollins, together with the documentary evidence in the record, tends to prove that in the early part of the year 1854 Commander Hollins, in command of the United States ship Cyane, was commissioned and instructed by his government to proceed to the town of San Juan, otherwise called Greytown, and there to demand of the inhabitants of said town reparation for an alleged insult to the American minister, and remuneration for certain property which had been removed from Punta Arenas by persons in Greytown belonging to the American Transit Steamship Company; and, in the event of a refusal by the inhabitants of Greytown to comply with his demands, “ to punish them in a way that they would remember it thereafter.”
    That the authorities of Greytown refusing to comply with the demands of Hollins, he bombarded and destroyed the town.
    That a day, or a few days, after the destruction of Greytown, Commander Hollins, at the solicitation of the agents of the steamship company, at Punta Arenas, for fear that the powder there stored might by some malicious persons of Greytown be ignited, and thus hazard the safety and security of the steamship company’s property, he ordered the powder to be thrown into the sea. That the authorities of Greytown exercised no jurisdiction over Punta Arenas. That the government of the United Stales generally approved and ratified the acts of Commander Hollins.
    A factor or agent may or may not disclose the interest and name of his principal; he may contract or ’sell or bring suit in his own name.
    Whenever, the principal comes forward and discloses himself, he may bring suit in his own name, on contracts in the name of the agent; and, upon notice to the debtor, he may forbid payment to the agent, subject only to the factor’s lien for advances made.
    These principles of well-settled commercial law, when applied to the facts in this case of the apparent ownership and claim of title of the powder by DeForest, up to a certain time, before his principals' came forward and disclosed their interest, it is believed, relieved the case of any doubt about the title of the claimants to the powder in question.
    Indeed, the United States, if liable at all in this case, stand in the relation of a quasi wrong-doer to the petitioners, and against all such a frima facie title is sufficient.. Bare possession of property against a wrong-doer is sufficient evidence of title to maintain suit.
    But the main question is, Is the United States liable for the destruction of this powder ? and, if so, upon what ground can this liability be placed consistent with law and adjudicated cases ? The answer is, there are two grounds :
    1.A taking of private property for public use.
    ‘ 2. That of a servant so carelessly, negligently, and unskilfully executing his master’s instructions as to cause the injury complained of, and fix the principal’s liability on an implied contract of indemnity.
    It is not necessary to call the attention of the court to the authorities to sustain the first position.
    The second proposition may require more elaboration. There is a well-settled distinction between the grounds of liability between the relation of principal and agent and master and servant.
    I place my servant upon the seat of my carriage, put the reins and whip in his hands; and direct him to drive to the Capitol; he represents me, and if he carelessly, or unskilfully, or negligently drives against the carriage of some other gentleman returning from the Capi-. tol, breaking it, am I not liable for the damage ?
    For the wilful, wanton, or malicious injuries of my servant I am liable.
    1. To the point, that the United States are not liable, because the United States and G-reytown were belligerents, and the remedy, if any, is against the government of Greytown.
    I do not controvert the correbtness of the law laid cjpwn by Secretary Marcy, in his letter to the French and British ministers upon claims of French and British subjects for property destroyed in Greytown.
    • It is not necessary in this case. ' -
    ■ This case stands upon entirely different ground.
    2. The claimants, personally, never were in Greytown.
    3. The powder never was in Greytown.
    4. If Punta Arenas was under any other jurisdiction with which .the United States were in amity, and the powder being destroyed there, does that furnish any just ground of defence to the United States ?
    I answer not.
    1. The duty of the United States to protect the person and property of its citizens is ubiquitous, unless the citizen makes his person or property subject to the jurisdiction of-the public enemy.
    
      
      2. The claimant’s remedy is transitory.
    Trespass upon the person or personal property of one citizen by another, within a foreign jurisdiction, is no bar to an action within the United States for such injurys. — Mostyn v. Fabrigas, 1 Cowp. R„ p. 176.
    In Mitchell v. Harmony, Chief Justice Taney says ; “ And where the owner has done nothing to forfeit his rights, every public officer is bound to respect them, whether he finds the property in a foreign or hostile country, or in his own.”
    But conceding, for the sake of the argument, that the United States and Grej'town were belligerents, and that the property of the claimants, situated in Greytown, was riglufully destroyed, and that the United States is not liable, I still maintain the right of the claimants to recover the value of the powder is perfect.
    The powder was in neutral territory.
    The evidence shows this fact beyond all question; therefore the .defence on belligerent grounds fails.
    5. No action can be maintained by the claimants against Hollins, because he acted undqr the orders of the government, and his acts were subsequently ratified and confirmed. — 2 Exchequer Reports.
    The Assistant Solicitor for the defendants:
    I. The original petition in this ease sets forth the following facts :
    1. That Dexter, Harrington & Co., who were citizens of the State of Massachusetts, embarked in busiuess at Greytown, or San Juan del Norte, in Central America, in the winter of 18/50 — ’51, and that William H. DeForest, as the agent of said Dexter, Harrington &Co., was scut to Greytown to manage said business for them.
    
      2. That in the prosecution of said business said Dexter, Harrington &Co. sent to Greytown divers goods, wares, and merchandise, and that they also acquired valuable real estate, and erected buildings at said Greytown.
    3. That on the 13th day of July, A. D. 1854, the property of said Dexter, Harrington & Co., which had before that time been sent to Greytown, was totally destroyed and rendered worthless by George N. Hollins, eaptain in the navy of the United States, then in command of the United States ship Oyane, and those acting under and in accordance with his orders, and that the said real estate was, by the acts of the said Hollins and those acting under his command as aforesaid, rendered valueless, or nearly so; and that the said acts of the said Hollins and others, namely, the bombardment and destruction of the said Greytown and the property therein, were authorized, and were in accordance with the orders or instructions issued by the government of the United States, and were to the great damage and loss of said petitioners, as they are assignees of said Dexter, Harrington & Co.
    4. That a part of the property sent to the said Greytown by the said Dexter, Harrington & Go. consisted of 20,100 pounds of powder, costing in said Boston $2,200 37, for the sale of which to the government of the State of Nicaragua a contract had been made with the said government by the said DeForest, by which the said government agreed to pay therefor at the rate of thirty cents a pound; that the said De Forest had refused to deliver the same to the said government until he should receive the payment in hand therefor, and that the said powder was stored in an out-building at Punta Arenas, about a mile and a half distant from the town of Greytown, and across the bay; and that, on the morning of the day after the said bombardment, the said Hollins, alleging his fear that the inhabitants of Grey-town would seize upon and use the said powder to the damage of the interests which he was bound to protect, caused the same to be thrown into the sea, to the great loss and damage of said petitioners.
    5. That the authority of the said government of Greytown extended to and embraced Punta Arenas; that, as guardian of the port, jurisdiction in said government over Punta Arenas was necessary for the public purposes of police, pilotage, and quarantine; that jurisdiction in said government over it was necessary, also, for duly administering justice, preserving the public peace, and punishing wrong doers ; that, also, jurisdiction in said government, for the ends and purposes stated, necessarily extended to and embraced the entire waters of said port to the sea, as well as the waters of the sea adjacent to and opposite Punta Arenas; that, also, for the same ends and purposes, the jurisdiction of the de facto government at Greytown for the time being over Punta Arenas had been always, and particularly since the year 1848, conceded and submitted to by all occupants thereof, and by those dwelling there, and among them by the agents and others in the employ of the Accessory Transit Company aforesaid, who, as voters and otherwise, took an active part in forming the last-mentioned government at Greytown, and thereafter voted at its elections, and repeatedly availed themselves of the local courts, as having authority over Punta Arenas and dwellers thereon, whereby, the petitioners submit, they subjected themselves to said government, and were thereafter precluded from refusing to be subject thereto, and from withdrawing, while residents, from the authority thereof at their pleasure ; that the agents and others last aforesaid at Punta Arenas, in the employ of the Accessory Transit Company, from necessity as well as choice, sought and were accustomed to receive the aid of and protection from the government of Greytown, as they were not themselves a political body or possessed of the requisites or resources to constitute one, and did not claim it to be such, and from circumstances of location and residence were a part of Greytown, who thereupon assembled, and in public convention agreed upon a basis of government; and subsequently a constitution and laws and regulations in accordance therewith for the government and regulation of the “ city and port of Greytown,” were adopted, and went into full effect on the 15th of said month of April, 1S51; that, by the constitution so adopted, full provision was made for the due administration of justice, civil and criminal, throughout the city and port of Greytown, and the territory of the entire kingdom of Mosquito, so called, to which basis of government, constitution, and laws and regulations, ready to be produced, the petitioners pray leave to refer.
    6. The claimants have waived all claims for loss to their other property, and seek now to recover only the reasonable value of the powder at the time of its destruction by Commander Hollins, which it is now claimed was $12,000.
    7. That the claimants became the assignees of Dexter, Harrington & Co., under the laws of the State of Massachusetts, prior to the time of the destruction of said property; and that, in virtue of said assignment, they succeeded to all the rights of said Dexter, Harrington & Co., in said property.
    II. The testimony in support of these allegations is extremely meagre and unsatisfactory, and comes far short of affording any well-settled data from which we may arrive at a solution of the questions involved.
    The learned solicitor for the claimant has nowhere in his brief indicated upon what principle of law, whether international or constitutional, he bases his right to a judgment against the United States.
    It is insisted on the part of the United States that the claimant cannot recover anything on account of the destruction of this powder, and the reasons that lead to this conclusion are as follows:
    1. That the owners of this property, being citizens of the United States, voluntarily domiciled themselves in a foreign country, and while so domiciled the United States deemed it proper to commit certain acts of war against the government or people of the country in which they were domiciled.
    2. That the United States is under no legal obligations to provide any indemnity to its citizens while domiciled in a foreign country, if the injuries on account of which they claim indemnity resulted from the existence of a state of war in the country in which they were domiciled.
    3. The destruction of this powder was not a taking of private property for public use, and there is therefore no implied obligation resting upon the United States to make compensation therefor.
    In order to sustain this proposition, it is necessary only to refer to the facts and circumstances which led to the destruction of this powder. The petition in this case states some of them. It appears that these claimants, with other citizens, not only of the United States but of various other-nationalities, had been induced to become residents at this place from considerations of the immense pecuniary advantage which would accrue to them there in consequence of the great tide of emigration then turning to the newly-discovered gold-fields of California. No great length of time had elapsed before the community to which these claimants intrusted their property had earned for themselves the character given to them by Mr. Marcy, in his reply to the French minister. It was to such a community that Commander Hollins was despatched with a United States war vessel called the Oyane.
    The history of this transaction shows that the confidence reposed by the Navy Department in this gallant commander was shamefully abused and lamentably misplaced. The authority given to Commander Hollins to demand indemnity for past offences, or to prevent by the use of the naval force under his command the. repetition of those offences, cannot be derived from his orders. I assume, therefore, that he acted without lawful authority or orders; and if this is so, he, and not the government, is liable for the destruction of this property.
    In order to render the government liable to make compensation for private property taken for public use, there must either be an actual appropriation of the property to its use or a destruction of the property to prevent it from falling into the hands of the public enemy, and so becoming a source of strength to him. If compensation is claimed for the destruction of the property belonging to the citizen to prevent its falling into.the hands of the enemy, the officer ordering the destruction must show that the danger is threatening — such as demands immediate action, and when delay would work public injury. Unless tbe necessity is such as to justify the officer, he is a trespasser, and there is no liability on the part of the government. It is necessity alone that gives the right to take private property for use or destruction. — Mitchell v. Harmony, 13 How., 134.
    In the case of William S. Grant v. The United Slates (1 C. CIs. B., p. 41) Judge Wilmot discussed with great ability and at considerable length the principles upon which the right of the citizen to indemnity for property used or destroyed by the government depends. It is believed that there is neither in the claimants’ petition or record any averments or evidence upon which they may recover compensation for property destroyed by Commander Hollins at Greytown. There is no evidence of any such pressing or urgent necessity as would authorize any court or jury to say that the destruction of this property was required by the public service. The only testimony on that point is the testimony of Commander Hollins himself. His testimony is entitled to but little weight, and to much less credit. He is evidently endeavoring to shift the responsibility for the part he took in a most disgraceful transaction upon the United States, when he alone should bear the burden and receive all the glory of it.
   Casey, C. J.,

delivered the opinion of the court:

In the year 1850 Dexter, Harrington & Co., of Boston, were- merchants doing business in that city. On the 24th December of the same year they made an arrangement with William H. DeForest for a mercantile adventure to San Juan del Norte, or Greytown, in the State of Nicarauga. In pursuance of this arrangement a cargo of goods was despatched by them to Mr. DeForest, at Greytown. By the agreement Dexter, Harrington & Co. were to furnish the goods from time to time; DeForest was to reside at Greytown, transact all the business, and share equally with them in the profits of the enterprise, after first paying the sums advanced by Dexter, Harrington & Co. for the goods.

In accordance with these arrangements DeForest established himself at Greytown, and continued to transact business there until July, 1854. For some part of the time he had associated with him one Tageda, but the latter does not appear to have had any understanding or connection with Dexter, Harrington & Co. Some time in 1851, Dexter, Harrington & Co. purchased and shipped to DeForest 21,000 pounds of powder. The powder arrived safely, and was stored for greater security at Punta Arenas, across the bay from Greytown, near . the warehouses and depot of the Accessory Transit Company.

The passage across Central America had become a matter of great importance to the government and people of the United States, on account of it being one of the main routes of communication with our possessions on the Pacific coast. The Accessory Transit Company was composed principally of citizens of the United States, and was engaged in transporting passengers and freight between the Atlantic States and the Pacific coast, under rights and authorities derived from the loeal governments of that country.

By the year 1854 San Juan, or Greytown, as it was then called, had become the rendezvous of marauders and freebooters. They materially interfered with the operations and business of the transit company, committed depredations upon them, and upon other citizens of the United States. One of the accredited foreign ministers of the United States to a South American republic, on his way to or from his post, was treated with great indignity and violence. The consular agents of the United States at that place Were subjected to the same treatment.

These things being fully represented to the executive authorities of the United States, the President, through the Secretary of the Navy, ordered Commander Hollins to proceed thither with the ship-of-war Cyane, to seek and enforce reparation for the insult to the United. States and the injuries inflicted upon their citizens.

Commander Hollins arrived off Greytown, and communicated according to his instructions with Mr. Fabens, the commercial agent of the United States. He then made repeated demands upon the authorities of the place for indemnity for property of citizens taken or destroyed, and suitable apologies for the indignities offered the United States through her accredited diplomatic agents. These demands were treated with indifference or contempt, and accordingly, on the 13th July, 1854, and in pursuance of previous notice, he opened firq upon the place, battering down most of the buildings, and sending a force on shore to complete by burning what the bombardment had left.

It was suggested to Commander Hollins that the inhabitants of Greytown might take revenge for the punishment he had inflicted upon them by firing the building in which this 21,000 pounds of powder were stored, and thereby destroy the warehouse and property of the Transit Company, and the goods and merchandise of others intrusted to them. He thereupon took the powder and cast it into the bay, destroying the whole of it.

Commander Hollins made an official return of his proceedings relating to the demand for reparation, the refusal of the authorities, and his bombardment and destruction of the town. His action was approved by the United States, and he commended for the prompt and efficient manner in which he had carried out his instructions. He does not mention the destruction of the powder in his official report. But, in' a subsequent despatch, dated 24th November, 1854, to Mr. Marey, Secretary of State, Commander Hollins details the destruction of the powder and the reasons which impelled him to do it.

The President in his annual message to Congress referred to the affair, and commended the energy and discretion with which Commander Hollins had executed the instructions of the government; and subsequently Secretary Marcy, in answer to a communication from the chairman of the Committee on Foreign Affairs in the Senate, appears to take for granted the liability of the United States for the powder in question, and that the ownership and value were the matters to be inquired into; and he suggests that the value was not above $12,000. By resolution of the Senate the claim was referred to this court.

We do not see how this case can be distinguished in principle from that of Grant v. The United States, 1 C. Cls., p. 41. There the property of a citizen, in one of the Territories of the United States, was destroyed' to prevent it from falling into the hands of the insurrectionary forces. Judge Wilmot reviews at length the grounds of the claim, and the authorities bearing upon the subject, and shows most clearly and conclusively that, whether the property be taken and appropriated by right of eminent domain, or destroyed to prevent other or greater injury to the public, the party is entitled to compensation. That this results as well from the principles of natural justice and equity as from the constitutional injunction to make compensation for private possessions devoted to public ends. We are entirely satisfied with the grounds there assumed, so far as they are applicable to the facts of this case, and can add nothing to the cogency or conclusiveness of the reasoning. Nor is it necessary to support it by further citations of authorities.

The Solicitor contends that the destruction of the powder was not embraced in Commander Hollins’s instructions, and that his acts were therefore merely a tort, for which he only, and not the United States, would be liable, as was decided by the Supreme Court of the United States in the case of Mitchell v. Harmony, 13 How., 134. It is true that any agent or officer of the United States who, without any just x canse or lawful authority, takes or destroys the property of a citizen, though he act by color of his office, it will not shield him from damages at the suit of the injured party. And in such case the government is not liable, for it does not insure against the mistakes or wilful misconduct of its officers. Sometimes an officer is compelled, like Commander Hollins, in the ease before us, in carrying out his general instructions, to act upon his own judgment, and to exercise his discretion as to how far it may be essential for him to interfere with individual rights. In all such cases his conduct will be viewed with great liberality, wherever it is apparent that he acted with a view to the faithful execution of the trust committed to him.' And although there may have been no precedent authority for the particular act, yet its adoption by his government makes it an act of state, and for which the nation alone is responsible. The case of Buron v. Denman (2 Exch. Rep., 167) is a cáse directly in point. The plaintiff in that case was a Spaniard, who carried on the slave trade at the Gallinas, on the western coast of Africa, and in the pursuit of his calling had barra-coons erected along the coast, and had numerous slaves there. The defendant was a commander in the royal navy, and had been charged by his government with the liberation of a woman and her children, British subjects, held as captives by one of the native princes. In carrying out those instructions Commander Denman destroyed the plaintiff’s barracoons and liberated his slaves. Upon report made by him to his government his conduct was distinctly approved and commended by the ministers of state and the lords of the admiralty. And though the court of exchequer held that his conduct was unlawful, yet the act having been approved and adopted by the government, became thereby an act of state, for which the government alone was responsible.

So, in the present case, we have no doubt that Commander Hollins acted according to the best of his judgment, in view of all the facts with which he was surrounded. His government sustained him, and made his act its own.

The proof shows that the property was originally bought and paid for by Dexter, Harrington & Co. DeForest had no other interest or property than his contingent right to a moiety of the profits, if any there should be, after the close of the venture. The proof satisfies us that the enterprise was an unfortunate one, and attended with heavy losses to all concerned. There was, therefore, no real interest or property in the subject-matter in DeForest; but if any such had vested in him by virtue of the arrangements with the claimants at the outstart of the adventure, it was fully divested by DeForest’s written relinquishment of all right to the claim to the claimants, dated July 18, 1855.

The evidence of the value of the powder at the place it was destroyed in 1854 is not' very clear and distinct. Mr. Marcy, in his communication to Congress in 1855, estimates it at $12,000. From the evidence now before us of its original cost, and the time and place where it was found, we think that too high a value. There is some evidence of a conditional sale of the powder, made some time before its destruction, at the sum of $6,000. It was not delivered in pursuance of that agreement, because the payment of the price could not be made or secured to the satisfaction of DeForest by the purchasers; but such an agreement furnishes fair and legitimate proof of what the owners were willing to sell for and purchasers willing to give; and that, in the absence of any evidence of a regular market value at the time and place, is probably the best proof that could be made. The length of time that has elapsed since the claim has accrued probably renders this a very inadequate return to the claimants for the loss of their property in 1854; but the act of Congress expressly prohibits us from allowing interest on any claim of this description, and to increase the damages because of that provision would be an unwarrantable evasion of the act of Congress. We think $6,000 was the fair value of the powder at Punta Arenas in 1854, when it was destroyed, and for that sum we render a judgment in favor of the claimants.

LoRiNG, J.,

dissenting:

I think the material facts in this case are that the powder, which is the ground of claim in the case, was destroyed by Captain Hollins to prevent the destruction or injury of certain buildings containing machine-shops, workshops, and lodging-rooms, and belonging to the Transit Company, and held by them, not at Greytown, but on the opposite shore at Punta Arenas, in Costa Rica, under an act of incorporation from the government of that country; and that citizens of the United States were members of the Transit Company and of the corporation above referred to, and as such interested in the property specified; and the question is, whether the destruction of the gunpowder was “a taking of private property for public use.” I think it was not, because I think the protection of the property, for the security of which the powder was destroyed, was not, under the rule of the law of nations, the legal duty or obligation of the United States. Under the law of nations, as held in Europe and in this country, governments have such extra territorial jurisdiction as may protect their citizens in other countries not civilized and not recognizing the same jus gentium; but I think this rule has never been, and cannot be, extended to such interests in property as our citizens may have as members of a corporation created by and existing under the laws of a foreign country, holding all its property and powers under that, and as a legal entity or power belonging to it exclusively.

Then the remaining question is, whether the United States became legally liable for the value of the powder by the adoption or approval of the act of Captain Hollins by the Executive. I think they did not. The Executive cannot extend a rule of law or liability under it, or legalize a departure from it. And there is a difference between this government and monarchical governments in Europe and England, which, I think, makes their precedents inapplicable here. There the King is sovereign, and may do all he is not restrained from doing by the organic law; here the Executive is not sovereign, and can do only that which it is authorized to do; and I know of no authority, express or implied, by which the Executive can extend the legal liability of the United States for property in a foreign country beyond that imposed on it by the law of nations. I think that to do this would require an act of Congress, and that the remedy of the petitioner is in Congress, and not here where we administer only the legal obligations of the United States.  