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by subservient courts, even to the point of allowing a plea that the matters in controversy constituted an “Act of State” to oust the jurisdiction of the ordinary courts altogether. But as the courts gradually established their independence of the executive, the doctrine received further and further limitations, until the earlier claims of complete exemption were given up and may be disregarded for the purposes of this discussion, which is intended to treat of certain present aspects of the doctrine, rather than of its historical development in detail.
One of the leading cases is Buron v. Denman, reported in 2 Exchequer, 166. The defendant in this case, Commander Denman of the British Navy, was carrying on a campaign against the African slave trade. In its course he burned plaintiff's slave barracoons at Gallinas on the West Coast of Africa, and liberated a large number of slaves. Gallinas was situated in territory under native control, where, “ according to the evidence on both sides, it was lawful to possess slaves.” Plaintiff, a subject of Spain, brought an action in trespass in the English courts. The defendant pleaded that his acts had been ratified and approved by the Admiralty, and thus adopted as an “Act of State " for which he was not personally liable. The case was tried before Baron Parke, who held that the acts complained of in themselves constituted a tort, but left it to the jury to determine the question of governmental ratification, pointing out that by such ratification the character of the act becomes altered, for the ratification does not give the party injured the double option of bringing his action against the agent who committed the trespass or the principal who ratified it, but a remedy against the Crown only (such as it is) and actually exempts from all liability the person who commits the trespass. The essence of this decision is well indicated by Professor Dicey in his masterly work on the English Constitution, where he says:
What the judgment in Buron v. Denman shows is, that an act done by an English military or naval officer in a foreign country to a foreigner, in discharge of orders received from the Crown, may be an act of war, but does not constitute any breach of law for which an action can be brought against the officer in an English Court.?
1 See W. Harrison Moore's "Act of State in English Law,” pp. 4-31. 2 Law of the Constitution, 7th ed., p. 362, note 3.
This goes to the root of the matter. Where an “Act of State injures an individual foreigner, it passes from the domain of law to the domain of force and becomes an act of war waged by a government against an individual, with somewhat overwhelming odds in the government's favor, and with no redress for the injured party even in his own courts.3 In the Denman case the facts
have justified the use of such methods. The British Government was carrying on what amounted to a war, not against a nation, but against an institution - slavery -- which advancing civilization was sloughing off; and judicial opinion, reflecting as it always must to some extent general public opinion, gave its sanction to war measures.
Subsequent decisions by the English courts show that they have recognized the necessity of setting strict limits to this dangerous doctrine. They have accordingly held that whether or not an act done under color of office is an “Act of State” is a justiciable question, within the jurisdiction of the civil courts, and that even authorization by the Crown is no defense unless the Crown is acting within its constitutional rights.
Parliamentary authorization stands on a different basis, in view of the supreme power of the British legislature, but this distinction does not apply in countries where the legislature as well as the executive is subject to constitutional limitations. The recent English cases do not squarely present the question whether an alien claimant is entitled to the same enforcement of law and measure of justice as a British subject, and it may be that the somewhat chauvinistic rule of the Denman case still holds. It hardly seems probable, however, that it would be applied except in a case where the controversy involved some question which was regarded as a “moral issue,” like the suppression of the slave trade.
In the United States the question arose at an early stage of the nation's history, and was determined by such jurists as Marshall and Story in favor of the view that if an act was otherwise a trespass
3 Underhill v. Hernandez, 168 U. S. 250.
upon private rights, it could not be legalized by governmental authorization, whether from an executive department, from the President, or from the legislature acting beyond its constitutional powers. Moreover the courts adhered to the salutary principle long ago formulated by the Latin poet:
Tros Tyriusque nihi nullo discrimine agetur: and the rights of aliens were as fully vindicated as those of citizens. Without formulating the idea in so many words, the courts apparently recognized that it was unworthy of the government to wage private war upon a defenseless individual, whether citizen or alien, and that in a state of peace a government officer could not escape
consequences of trespassing upon private rights by sheltering himself under the ægis of a so-called "Act of State.” Thus the "Act of State” doctrine, as understood in England, found no lodgment in the structure of American jurisprudence, at least while its early builders were laying its foundations. They recognized that the government was not a self-existent or divinely anointed entity with inherent and irresponsible powers, but was itself the creature and subject of Law, the organized structure of the community, acting through individuals, each and every one of whom was bound not to violate the law to the injury of another, on peril of his individual responsibility.
After the Spanish War the “Act of State” doctrine seems to have reappeared, and was stated in a surprisingly broad form by Mr. Justice Holmes in the Paquete Habana, as follows:
But we are not aware that it is disputed that when the act of a public officer is authorized or has been adopted by the sovereign power, whatever the immunities of the sovereign, the agent thereafter cannot be pursued.
As applied to unquestionable acts of war, affecting persons or property having an “enemy” character, this is doubtless the only practicable rule, but to give it a wider scope involves a dangerous
6 Little v. Barreme, 2 Cranch 170; U'nited States v. Lee, 106 L. S. 196; Virginia Coupon Cases, 114 U. S. 269 ; Belknap 1. Schild, 161 U. S. 10; United States v. Bevans, Fed. Cas. No. 14,589.
7 The Charming Betsy, 2 Cranch 64; Maley v. Shattuck, 3 Cranch 458. 8 189 U, S. 453, 465.
extension of the conceptions of sovereignty in a government of delegated and limited powers. In the Paquete Habana case, the theory of ratification was invoked for a beneficent purpose – to subject the government to liability, and not to exonerate the individual officers who had overstepped the legal limits of their powers — so that the statement quoted was purely dictum.
Moreover, the cases upon which it was based, with the single exception of Buron v. Denman, already discussed, fell far short of establishing so broad a rule. One' was a case of seizure of “ enemy property” during the Civil War, an act of war for which the individual military officer was properly held not to be personally liable. Another 10 really went upon the ground that the British East India Company, in its governmental capacity, like one of the States of the l'nion, was not subject to the jurisdiction of the ordinary courts. In a third 11 the principle was resorted to in order to make the government liable, not to relieve any individual. And in the last 12 the only rule established was that an individual could make himself liable by ratification for the tortious act of another acting ostensibly as his servant, but without actual employment as such. The facts in the case were simply that a volunteer driver of a coal wagon, not employed by the owner of the business, but apparently seeking a little air and exercise on his own account, negligently broke a window in the course of his operations; and the owner of the business, having accepted the result of his services, and rendered a bill to his customer for the coal so delivered, was held to have become the driver's employer nunc pro tunc by ratification, and to be liable for the broken window. It seems rather a far cry from this grimy incident to the “Act of State ” doctrine, and the delicate problems of international law.
The next and latest appearance of the doctrine was in the litigation which arose over the American Military Governor's abolition of the O'Reilly Slaughter House Franchise in Cuba. There it was successfully invoked to exonerate the officer without imposing any liability on the government. This case is sufficiently remarkable and interesting to warrant a somewhat detailed discussion, especially as it indicates a tendency in the courts to depart from the wholesome doctrine that in a state of peace any wrongful invasion of private rights by a government officer is at his personal peril.
Lamar v. Browne, 92 U. S. 187.
10 Secretary of State in Council of India v. Kamachee Boye Sahaba, 13 Moo. P. C. 22.
11 Wiggins v. United States, 3 Ct. Cl. 412. 12 Dempsey 1'. Chambers, 154 Mass. 330.
The situation in Cuba at the time was anomalous, and one which would naturally give rise to numerous difficult questions of international law. The war was over, and with it had departed the unfettered sovereignty of war power. Cuba was under the control of the United States, but the government had expressly disclaimed the intention of exercising any jurisdiction or sovereignty except to preserve order and provide administrative machinery until the Cuban people could set up their own independent government and become one of the nations of the earth. Meanwhile Cuba was, as it were, a minor under guardianship - a separate entity, but not a selfdirecting one.
There existed in Havana at the time an ancient concession or franchise known as the derecho de puñalada, the “slaughter house tax," which belonged to the O'Reilly family. It had formerly been annexed to the inheritable and alienable office of Alguacil Mayor, or High Sheriff, of Havana. The office itself had been abolished in 1878, but the concession remained in existence until it should be condemned by the government and paid for. It consisted of the right to conduct the public slaughter house, which belonged to the municipality, and receive a certain fee for each head of cattle there slaughtered. This concession was property under Spanish law and as such apparently came within the protection of the Treaty of Paris.
One of the questions which arose in the subsequent litigation was whether this property right survived the withdrawal of Spanish sovereignty, and the Supreme Court rested its decision against the claimant in part upon the proposition that it did not, as well as upon the theory that the abolition of the concession was adopted by the government as an "Act of State" for which the officer who declared