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ably be few, but they will doubtless arise from time to time. In
fact, within a very few years after the erection of the Cuban Govern-
ment, the United States were again called upon to intervene, occupy,
and restore order. Whenever such an occupation takes place, not as
a hostile military invasion, but as a form of civil administration,
many questions must arise as to the limitations upon the authority
of the foreign officers. Is such an officer, as suggested with apparent
horror by Lord Mansfield in Mostyn v. Fabrigas,23 “ accountable only
to God, and his own conscience a monstrous proposition
or is he bound to keep within the law at his own personal peril, as
held by Chief Justice Marshall ? The apparent recognition by the
Brooke case of the “Act of State” doctrine tends to substitute the
rule of might for the rule of law, and so greatly multiplies the possi-
bilities of international offense.

Unquestionably the task of such an officer is a hard one, and where he acts with reasonable judgment and good faith, his government should certainly protect him against personal loss. This government did so in the case of the officer who was held liable in Little v. Barreme, and in many other instances. But this should be done by indemnification of the officer and not spoliation of the claimant. The circuity of such a course is more apparent than real. The government conducts the defense and Congress makes an appropriation to cover the judgment, just as it would for a judgment of the Court of Claims.


There is another possible solution of the difficulty which would really be very simple, although on account of its departure from precedent it might meet with considerable opposition. At present the jurisdiction of the Court of Claims is so limited as to exclude cases “sounding in tort." But the border line between tort and contract is somewhat vague, and the distinction, especially when implied contracts are considered, is largely artificial. It is indisputable that government officers, acting in good faith in the line of their duty, and with no motive of personal advantage, may and sometimes do trespass upon the rights of individuals. It savors of a somewhat narrow legalism to provide that, unless something in the

28 Cowp. 161.

nature of a contractual obligation can be spelled out of the transaction, the person aggrieved has no remedy against the government. Especially is this true if the “Act of State ” doctrine is to be adopted in all its implications, thus taking away the remedy against the officer. The very rule that the state can not be sued except with its own consent is, in its essence, a relic of somewhat obsolescent conceptions of sovereignty.

There is no substantial difference between admitting an enforceable liability upon an implied contract, and upon a technical tort, and one claim can be as fairly and properly litigated as the other. Where a governmental act violates any fundamental law, the government should be willing to litigate the question directly and to make compensation for any private injury so occasioned.

If the jurisdiction of the Court of Claims should be so extended as to include claims by aliens and citizens alike for all injuries suffered through the official acts of government officers, all the requirements of international law in this respect would be amply fulfilled. A resort to the "Act of State" doctrine would then be an lionorable assumption of governmental responsibility and not a loophole for escape from pecuniary obligation.




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A recent decision handed down by the Supreme Judicial Court of Massachusetts, and reported in its last published report, involves the broad consideration of the status of sovereigns as defendants both from the point of view of international and of municipal law. The decision concretely confirms the opinion that no matter from what point of view the theory of international law may be said to proceed, its doctrines are based on as firm principles of sound reasoning and justice as are the doctrines of the ordinary municipal law. And this notwithstanding the popular impression prevalent, especially among laymen, that international comity is the dominant principle of international law. As a matter of fact, international comity is simply a subservient and related part of the net-work of principles which make up the law of nations, principles based exclusively upon sound reasoning and justice. In the decision referred to, the plaintiff, a citizen of the United States, brought suit in the Massachusetts courts against the Intercolonial Railway of Canada by an ordinary trustee writ naming certain residents of Massachusetts as trustees. Thereupon counsel appeared as amicus curiæ and suggested that the action be dismissed on the ground that the property known as the Intercolonial Railway was the property of the British Crown and a public work and was operated and controlled by His Britannic Majesty in the right of his government of Canada. Upon this suggestion the court dismissed the action.

In the ordinary case of a suit by a citizen of one State in the l'nited States against a resident of another State the courts in the former State assume jurisdiction over the defendant providing property belonging to the defendant may be found within its borders. The same principle is true if the suit is against a citizen of a foreign country. But when, instead of being a citizen of a foreign govern

1 Mason r. Intercolonial Railway of Canada, 197 Mass. 349 (1908); see this JOURNAL, 3:224.

ment, the defendant is the foreign government itself, we pass beyond the confines of the municipal law and into the realm of international law. It is a main purpose of the writer to show that when such foreign government conducts an undertaking commercial in its character and not in its strict capacity as a sovereign government the law of nations should permit suit to be brought against such government providing property belonging to it may be found within the jurisdiction of the home courts. The general subject of the immunity of the sovereign power from jurisdiction of its own and foreign courts has been discussed in various decisions, but the narrower question of immunity when engaged in undertakings private or commercial in character has never been specifically discussed, except by way of dicta, so far as the writer knows, unless possibly in the case referred to above determined by the Massachusetts court, where the bare decision on this point is given without discussion, and certain other authorities to be hereinafter considered.

In consequence of the absolute independence of every sovereign authority, and of international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state, the courts decline to exercise any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to be used as such, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and, therefore, but for the common agreement, subject to its jurisdiction.

The sovereign being bound not to degrade the dignity of his nation by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated for, are reserved by implication and will be extended to him. It will here be contended that to the general rule that a sovereign cannot be sued in a foreign country there are two exceptions, first, where the sovereign or state goes into the municipal courts of another country for the purpose of obtaining a remedy, then by way of defence to that proceeding, by way of counterclaim if necessary, to the extent of defeating that claim, the person sued may file a crossbill or take other proceedings against that sovereign or state for the purpose of enabling complete justice to be done between them. The other exception is the case in which a foreign sovereign may be named as defendant for the purpose of giving him notice of the claim which the plaintiff makes to funds in the hands of a third person or trustee over whom the court has jurisdiction in which the cause of action arises from a transaction by the sovereign private or commercial in its character.

2 Briggs v. Light-boats, 11 Allen (Mass.), 157; The Constitution, L. R., 4 P. D., 39; Schooner Exchange v. M'Faddon, 7 Cranch, 116; Wadsworth v. Queen of Spain, 17 Q. B., 171.

3 Mason v. Intercolonial Ry., supra.

4 The Parlement Belge, L. R., 5 Prob. Div., 197 (1880); De Haber v. Queen of Portugal, 17 Q. B., 196.

This latter exception is expressly sustained by Lawrence, J., in Mighell v. Sultan of Jahore, and confirmed by James, L. J., in Strousberg v. Republic of Costa Rica, supra. That the forum rei site is not excluded by the fact that the ownership is in a foreign sovereign or ambassador is recognized in the law of England. The decisions on which the English and other courts have based the doctrine of extraterritoriality, namely, the independence of a foreign sovereign and the courtesy which induces courts to refrain from anything that would prejudice the dignity and interfere with the convenience of a foreign sovereign or his representatives, should not apply where the existence of real property gives a means of execution that does not involve any personal indignity. By parity of reasoning it has been said in the courts of England and America that proceedings in rem, such as the attachment of a ship belonging to a foreign sovereign and engaged in trading, for ships of war being for the public service cannot be seized, will give jurisdiction over that foreign state or foreign sovereign.? A trading by a foreign sovereign will cause the exemption accorded to him in his public capacity to cease. In the case of the United States v. Wilder, the

5 James, L. J., in Strousberg v. Republic of Costa Rica, 14 Law Times, 199.
61 Q. B., 149.
7 Bar: International Law, p. 614.
83 Sumner (U. S.), 308.


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