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question was whether property belonging to the government was liable to make contribution in a case of general average and this claim was sought to be enforced by lien. Mr. Justice Story was of the opinion that the fact that a lien was the only method of enforcing liability was the best possible reason for sustaining it. Among other things, he considered that the distinction has often been taken by writers on public law as to the exemption of certain things from all private claims, as, for example, things devoted to sacred, religious and public purposes, things extra comme
mercium and quorom non est commercium. That distinction might well apply to property like public ships of war held by the sovereign jure coronae, and not be applicable to the common property of the sovereign of a commercial character or engaged in the common business of commerce.
The public property of the sovereign is distinguished from other property belonging to state establishments in the case of the Schooner Exchange v. M'Faddon.' Marshall, C. J., says there is a manifest distinction between the private property of the person who happens to be a prince, and that which supports a sovereign prince and maintains the independence of a nation. A prince by acquiring property in a foreign country assumes the character of a private individual.
In the Parlement Belge, 10 it was held that suit in rem could not be maintained in England against property belonging to the Belgian government on account of a collision between a steamer owned by the Belgian government and an English-owned steamer; “in the present case the ship has been mainly used for the purpose of carrying mails and only subserviently to that main object for the purpose of trade,” showing, at least, a clear indication that if the vessel had been used mainly for the purpose of carrying passengers for hire, suit could have been maintained, for then the Belgian government would have been engaged in conducting a commercial undertaking for profit.
In the case of the Charkieh,11 where it was sought to enforce a damage lien by proceedings in rem, namely, against a ship belonging
97 Cranch (U. S.), 116. 10 Law Reports, Court of Appeals, 5 Probate Division, 197 (1878). 11 L. R., 4 Ad. & Ec., 59.
to the Khedive of Egypt, Sir R. Philimore held that the Khedive was not entitled to the privileges of a sovereign. But although this ground was sufficient to dispose of the case, he delivered an elaborate judgment to the effect that where, by proceedings in rem against property of a foreign sovereign, the indignity of personal service of the summons or execution can be avoided, no ground for a plea of extraterritoriality exists. The object of international law, in this as in other matters, is not to work an injustice nor to prevent enforcement of a just claim, but to substitute negotiations, though they may be dilatory and the issue distant and uncertain, for the ordinary use of courts of justice in cases where such use would not lessen the dignity or embarrass the functions of the representatives of a foreign state; if the case takes a shape which avoids inconvenience, the object both of international law and of ordinary law is attained. Of the former, by respecting the personal dignity and convenience of the sovereign, and of the latter, by the administration of justice.
It seems to be disputed how far foreign sovereigns and foreign states are entitled to appear as defendants. It seems a sound view to distinguish the case where some obligation of the sovereign or the state is called in question, which depends upon an act that is competent only to the chief magistrate of the state or upon formal law, from the case where the obligation rests upon a legal relation in which any private person may be engaged and which can not be referred to in public law. In the former case, we may reject the competency of foreign courts; 12 in the latter, only allow their jurisdiction to be exercised under the same conditions as those upon which it would be founded against any private individual,13 without prejudice to the claims of extraterritoriality. For instance, a creditor cannot sue a foreign government on account of some loan contracted by it and resting upon a financial resolution or act; whereas, a merchant who has supplied goods to a foreign government for commercial purposes should under certain circumstances be permitted to sue in the forum contractus. If any foreign government desires to possess property in this country like a private person, it should
12 Story, sec. 542A.
share the obligations incumbent upon such person. In a suit at the instance of the Brothers Mellerior, jewelers in Paris, against Queen Isabella of Spain for the price of jewelry supplied both before and after the Revolution of 1868 which drove her from the throne, the Cour de Paris (June 3, 1792) held that as the Queen had ordered and used the goods in a private capacity she could be sued.14 The possession of real property in England created an exception by giving scope for proceedings in rem in Taylor v. Best.15 Says Bar,
Two exceptions are indicated as existing to the general rule as to the non-liability of foreign sovereign states to be sued; the first being where the state engages in trading, the second where it is possible by attaching property and thus proceeding in rem to avoid the indignity and em barrassment of public service.16
It is contended that it is greatly extending the applicability of the true meaning of the maxim that “the King can do no wrong” to apply it to the case of his acting in a private or commercial capacity, when, in truth, the political power of the sovereign is not in question, but merely his civil liability in a matter of tort or contract. The constitutional signification of this maxim was in former times misrepresented. It was pretended by some that it meant that every measure of the King was lawful, a doctrine subversive of all principles of which the constitution was compounded. The prerogatives of the sovereign do not extend to do any injury because being created for the benefit of the people it can not be exercised to their prejudice, and it is, therefore, a fundamental rule that the sovereign can not sanction any act forbidden by law; it is from that point of view that he is under and not above the laws and is bound by them equally with his subjects.17
If a sovereign, as is his undoubted right, can enter into contracts he should be bound towards those with whom he contracts in the same manner and to the same extent as they are bound to him. There must be reciprocity in such cases. A contract at common law is an agreement upon sufficient consideration to do or not to do a particular thing. These elements are present when, for example, the government undertakes to work a railway as an ordinary company would. In such case it ceases to exercise its political authority and undertakes an ordinary civil transaction, and in such transaction is not above but under and subject to the ordinary rules of common law. This is the legal and logical position to hold the govcrnment to be in when it undertakes to do the business of a common carrier, without any statutory declaration to that effect, as was held by the Supreme Court of Belgium when the government of that country began to work its railroads.18 Any person making it a regular business to carry persons for hire or advantage of any kind is a common carrier between the places to and from which he is accustomed to transport persons. The owner of a stage, railroad car, shop, or ferry-boat, is, if he carries on such a business by means of such vehicles, a common carrier of persons. According to this definition it does not seem to admit of a doubt that the government operating such a railway should also be considered a common carrier of passengers.
14 Bar: International Law, 614.
17 Chitty: Prerogatives of the Crown, p. 5; Broom: Legal Maxims, p. 53; Todd: Parliamentary Government in British Colonies, p. 1; Kent's Commen: taries, pp. 479, 480.
When the political authority of a sovereign is not in question and he either personally or by his duly authorized agent enters into a contract, he should be subject to the laws relating to contracts. may be that in consequence of the immunity attached to his person the sovereign should not be summoned before any ordinary civil tribunal of the land to fulfill the obligations of his contracts or to restore lands or chattels or to pay a just debt, in the same form of action as is a subject; the form which such an action should take is a minor matter. In all such cases, nevertheless, the maxim that the King can do no wrong must be accepted in a restricted sense, namely, subject to the constitutional right of every subject to claim from his sovereign the payment of a just debt, the fulfillment of the obligations of a contract, or the delivery of lands or chattels or damages. This right founded ex debito justitiæ is in reality the same as the right of action of a subject against another subject.
18 The Queen v. McLeod, 8 Canada Supreme Court Reports, 2 (1880).
The foregoing reasoning, however, is not confined to international law, for under similar circumstances municipal law as applied in various States in the United States has so held. Were the Commonwealth of Massachusetts, by an entity created by it or by a municipality under its authority, to build a railway to be used by such persons as pay regular fare for its use, then, at common law, and apart from statute, in case of an injury to a person through the negligence of the servants or agents of the Commonwealth or entity or municipality, as the case may be, such person may recover damages for the injury, for the rule that the Commonwealth of Massachusetts by its agents are exempt from suit does not apply when the Commonwealth or its agents conduct an undertaking commercial in its character. In the cases of cities or towns acting for the central government, the test made is whether they are acting as agents for the central government in its capacity as sovereign or in its private capacity furnishing benefits to those who pay for them, in which case the courts have invariably held that the city or town is liable for the negligence of its officers or servants in the maintenance of such property. There are many cases where the city or town has undertaken to build and maintain particular works as, for example, sewers, waterworks, and gasworks, in part for the general benefit and in part for the benefit of such individuals as may be able to use them advantageously, and where the expense is defrayed in the first instance, either wholly or partly, by assessments upon the estates immediately benefited or where a charge is made by way of toll or rent to those who avail themselves of the benefits of the work. In such cases the work is not undertaken purely as a matter of common public convenience and service for the benefit of all alike, but the city or town acts as an agency to carry on an enterprise partly commercial in its character for the purpose of furnishing conveniences and benefits to such as pay for them. The element of a consideration comes in; and in such cases it is usually held that a liability exists for an injury to an individual through negligence in building or maintaining the works.19 They should not be exempt from liability
19 Tindley 7. Salem, 137 Mass., 171: Childs ?. Boston, 4 Allen (Mass.), 41 at 53; Mayor of New York v. Furze, 3 Hill, 616; Eastman 1. Merredith, 36 N. H., 284: Oliver 1. Worcester, 102 Mass., 489 at 500.