Akerman to Hamilton Fish, December 29, 1871

Mr. Akerman to Mr. Fish.

Sir: On the 17tb of January, 1868, the Secretary of State called on the Attorney-General for an opinion upon the question whether the government of Brazil is justly responsible for damages resulting from the alleged corruption of its municipal judge at St. Catharine’s, in authenticating and ratifying the report of a board of surveyors upon a damaged vessel.

The claim for damages is preferred by Mr. Welles, the agent at St. Catharine’s of certain insurance companies in New York and Philadelphia that were injured by the proceedings in which the alleged misconduct occurred.

Even if the charge of corruption were established, (which does not appear to be the fact,) I am of opinion that the Brazilian government would not be responsible. The misconduct violated no treaty stipulations between Brazil and the United States. It did not benefit the public treasury of that country, but was in aid of a private interest. For aught that appears, a civil proceeding in the courts of Brazil would produce adequate redress.

For a thorough discussion of the subject of the liability of governments for the faults of their officers, I refer you to the opinion of Attorney-General Cushing, of May 25, 1855, (7 Opinions, 229.) In a case similar in principle to the present, he considered that the Government of the United States was not responsible to an injured foreigner. In all fairness, we must adhere to the same rule when our owncitizens, are injured by the officers of a foreign country.

Very respectfully,