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 the consequences of trespassing upon private rights by sheltering himself under the agis 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,8 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

Little . Barreme, 2 Cranch 170; United States v. Lee, 106 U. S. 196; Virginia Coupon Cases, 114 U. S. 269; Belknap v. 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. $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.

9

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 Union, 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

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 t. Chambers, 154 Mass. 330.

ACT OF STATE

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.

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

the abolition was not personally liable. This view of the nature of the property rights involved seems so at variance with the general principles of international law, and the usage of the United States in such matters, that for the purposes of this discussion we may assume the view of the lower court, that the concession was property. It is hard to see why a franchise to conduct a slaughter house should not be recognized as property fully as much as a concession to lay cables or to pave streets, or to provide gas or water or transportation; or to collect tolls for the use of a lock, as in Monongahela Navigation Co. v. United States; 13 or why it should not receive as much protection as the rights of the Sultan of Jolo in his slaves. The fact that at one time it was annexed to a public office is hardly an adequate ground of distinction, when the office had been abolished many years before, and only the concession remained. To go into this phase of the case, however, would extend this discussion into quite another field, certain aspects of which have already been elaborately treated in this Journal from a somewhat different standpoint.14

Whether or not the O'Reilly concession was property, it was certainly an existing producer of income, and when the American authorities were engaged in putting the finances of the City of Havana upon a sounder basis, they saw in it a convenient source of revenue. General Ludlow, acting as Governor of Havana, thereupon made an order abolishing the franchise and vesting the slaughter house privilege in the city, expressly leaving to the owners the right to apply to the courts to determine their right to compensation. This procedure was a somewhat inverted variety of condemnation, but it at least recognized that the owners were entitled to some legal protection. The owners appealed to General Brooke, acting as Governor of the Island. He made an order simply abolishing the long previously abolished office of Alguacil Mayor with all its "rights, duties and privileges," and denying all rights asserted by the claimants. This was subsequently approved by the War Department. It was claimed by the government that it was also included in the general ratifica

13 148 U. S. 312.

14 See "Purchasable Offices in Ceded Territory." by Percy Bordwell in the January, 1909, issue of the JOURNAL (Vol. 3, p. 119).

ACT OF STATE

tion by Congress of all the "acts of the United States in Cuba," contained in the so-called "Platt Amendment." 15

A Spanish subject, Doña Maria Francisca O'Reilly de Camara, Countess of Buena Vista, the owner of a one-half interest in the concession, then brought suit in the United States District Court against General Brooke, under a provision giving jurisdiction "of all suits brought by any alien for a tort'only' in violation of the law of nations or of a treaty of the United States." 16 This statute was apparently designed to cover just such a case, since such a tort could hardly be committed except by a government officer, acting under color of office. The opportunity can scarcely arise for private individuals to violate either the law of nations or a treaty. Upon demurrer the complaint was sustained,17 and the court held

that officers of the United States are personally liable for torts in violation of law, although done in good faith and in supposed obedience to acts of Congress or the orders of superior officers,

thus following the unbroken course of decision from Little v. Barreme to Belknap v. Schild. An elaborate and convincing opinion was delivered by Judge Holt, who made it very clear, both upon principle and precedent, that plaintiff's franchise was property under Spanish law, that it survived the withdrawal of Spanish sovereignty, that as property it was protected by the general principles of international law and the special provisions of the Treaty of Paris against spoliation by the officers of the United States Government, and that, whatever the obligations of the government, its officers were liable for any trespass upon such property rights. An answer was then interposed, setting up as a defense the supposed ratification of General Brooke's order by the United States; in other words, pleading in effect that the order complained of had been adopted as an "Act of State," although not describing it by that particular expression. The defense was conducted by the Department of Justice of the United States, and not by any personal attorney for the defendant. The case was tried before the same judge, who sustained such defense and held that

15 31 U. S. Stat. 897.

16 U. S. Rev. Stat., § 563, subd. 16.

17 135 Fed. Rep. 384.