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to which other corporations are subject in dealing with property or rights held by them in their own advantage or emolument.20
Hill v. Boston,21 which may be regarded as a leading case on this question, reviews all of the American and English decisions and throughout shows a distinction between a municipal corporation acting in its capacity as an agent for the central government in purely public duties and its acting in a private capacity carrying on enterprises partly commercial in its character. It proceeds: the distinction between acts done by a city in discharge of a public duty and acts done for what has been called, by way of distinction, its private advantage or emolument has been clearly pointed out by two eminent judges while sitting in the Supreme Courts of their respective States, who have since acquired a wider reputation in the Supreme Court of the Union, and by the present Chief Justice of England. Nelson, C. J., in Bailey v. New York ; 22. Strong, J., in Society 1. Philadelphia ; 23 Cockburn, C. J., in Scott r. Mayor. 24 Carrying out this principle concretely, the city is not liable in cases of the negligent putting out of fires by its agents or servants or in cases arising from the carrying on of educational work or in the supervision of police stations, court-houses, or jails, for in these cases it is carrying on governmental duties; whereas, on the other hand, when it deals in real estate, wharves, supplying water, supplying gas, conducts a public market, or any other business enterprise, it is acting in its so-called private capacity. In the case of the Proprietors of Mount Hope Cemetery 1. Boston,25 where the city of Boston appeared to own a cemetery and sold the lots therein, the Commonwealth afterwards created a new corporation and ordered the city to turn over the cemetery to the new corporation. It held that the law authorizing this order was unconstitutional, for the city was acting
20 Henry v. Lyme, 5 Bingham, 91; Nebraska v. Campbell, 2 Black, 590; Bigelow v. Randolph, 14 Gray (Mass.), 543; Merrifield v. Worcester, 110 Mass., 216; Murphy v. Lowell, 123 Mass. 564 at 567.
21 122 Mass., 344, 358, 359, 365, 374, 375.
in its private capacity and its rights were similar to those of a private individual owning private property.
As was stated in introducing this article, one of its purposes was to show that international law and municipal law are fundamentally based on identical principles of right and justice. Serjeant Plowden, in Eyston v. Studd, 26
says: Our law, like all others, consists of two parts, viz., the body and soul. The letter of the law is the body of the law, and the sense and reason of it is the soul, quid ratio legis est anima legis. And the law may be resembled to a nut, which has a shell, and a kernel within; the letter of the law represents the shell, and the sense of it the kernel. So you will receive no benefit by the law if you rely only upon the letter.
The doctrines of international law and of municipal law are not arbitrary, but are the resultant of relative principles. While international law is largely evolutionary, and the specific proposition of liability of the sovereign in private acts here contended for not absolutely settled, yet its doctrines are as much determined by legitimate business habits as are those of municipal law.
In such cases the more special rules of law become so extended or modified as no longer to accord with the broader principles from which they were originally deduced. Thus it seems to be with reference to the doctrine sought to be herein established, namely, the admission of liability of sovereigns in cases arising from acts done by them in their private or commercial capacity, as above. There seems to be no fundamental reason why such should not be the rule. If a sovereign government undertakes to step outside of its legitimate protection afforded by international comity and voluntarily enters the independent realm of contract for gain, it should be subject to its duties as well as to its privileges. International comity does not exist arbitrarily, but is as much a subservient principle of the law of nations as is any other. Various licenses afforded sovereigns, either expressly or impliedly, grow out of this principle. But international comity should not prevent a foreign sovereign from being named as defendant for the purpose of giving him notice of a claim which a plaintiff makes to funds in the hands of a third person or trustee over whom the court has jurisdiction in cases where the cause of action did not arise from a transaction by the sovereign extra commercium and quorum non est commercium. The fact that garnishment process is the only process to reach funds belonging to a foreign sovereign is a good reason for sustaining it. In such a proceeding in rem the indignity of personal service of the summons or execution is avoided and the plea of extraterritoriality should not prevail. One of the objects of international law is to evoke the aid of ordinary courts, and not to work an injustice nor to prevent enforcement of a just claim, in cases where such use would not lessen the dignity or functions of a foreign state. Should a foreign government desire to possess property in a third country, there is no reason why it should not submit itself to the operation of the laws in that country. The prerogatives of the sovereign can not extend to do any injury because, being created for the benefit of the people, they should not be exercised to their prejudice. A sovereign entering into an ordinary contract, upon sufficient consideration, should be bound to the same extent and manner as is the opposite party to the contract and suit should be permitted in some form; the right being founded ex debito justitiæ. That this method of reasoning has been held equally applicable in municipal law to cases where a sovereign state by its agents act in an undertaking for profit has been shown by authorities cited supra. The element of consideration comes in, and the state or its agents act for their own advantage and emolument. It is in fact the law, as well as it is justice, to subject the doctrines of international law and of municipal law to the same processes of reasoning no matter from what theories or implications they severally proceed.
26 Plowden's Reports, 465 (1574).
THE HISTORY OF THE DEPARTMENT OF STATE
OCCASIONAL DUTIES OF THE DEPARTMENT Perhaps the most important of the occasional duties of the Department of State is that which involves its agency in recording the result of the quadrennial elections held in the several States for the office of President and Vice-President of the United States. Section 1 of Article II of the Constitution provided that the electors should meet in the several States, and, having voted for a President and Vice-President, should make a list of the persons voted for, which they must sign and certify to and transmit sealed to the seat of government directed to the President of the Senate. The twelfth amendment to the Constitution adopted in 1804 looked towards an improvement in the method of voting for a President and VicePresident, but did not disturb the original provision for notifying the result. There is not, therefore, any constitutional requirement for participation of the executive branch of the government in this function; but the Act of March, 1792, relative to the election of a President and Vice-President provided for certain contingent duties on the part of the Secretary of State of great importance. Section 2 prescribed that the electors should meet in their respective States on the first Wednesday in December after their election, and sign three certificates of the votes given by them and seal up the same, “and send one copy by messenger to the President of the Senate; forward another to him by mail and lodge the third with the judge of the district in which the electors assembled.”
Section 4 said:
That if a list of votes from any State shall not have been received at the seat of government, on the said first Wednesday in January, that then the Secretary of State shall send a special messenger to the district judge in whose custody such list shall have been lodged, who shall forthwith transmit the same to the seat of government.
il Stat., 239.
And section 6 said:
That, in case there shall be no President of the Senate at the seat of government on the arrival of the persons intrusted with the lists of the votes of the electors, then such persons shall deliver the lists of votes in their custody into the office of the Secretary of State, to be safely kept and delivered over as soon as may be, to the President of the Senate.
This portion of the Act was confirmed by the Act of March 26, 1804,” and the only change made by the Act of January 23, 1845,3 was to change the date of meeting of the electors.
A careful search of the records of the Department of State fails to show that the electoral vote has ever been delivered to the Secretary of State. If it ever should be, his duty would be simply to act as its custodian, until the opportunity should come when it could be safely delivered to the President of the Senate.
Section 4 of the Act cited above, which became section 141 of the Revised Statutes, was amended by the Act of October 19, 1888,30 to read:
Whenever a certificate of votes from any State has not been received at the seat of government on the fourth Monday of the month of January in which their meeting shall have been held, the Secretary of State shall send a special messenger to the district judge, etc.
Special messengers were occasionally sent under the original law and have been sent under that now in force, there being no difference in the method prescribed by both.
The following example of the sending of a messenger will serve as an example:
WASHINGTON, D. C., Jan. 29, 1889.
Referring to the provisions of an Act supplementary to the Act approved Feb. 3, 1887, entitled "an Act to fix the day for the meeting of the Electors of President and Vice-President, and to provide for and