constitutional statute may be enjoined, the modern tendency, contrary to the older doctrine, is to hold that such statute protects the officer against an action for damages.1 Public officers are not in general civilly liable to third persons for the acts of their official subordinates.2

A peculiar doctrine of Anglo-American law-the "act of state" doctrine to which the Supreme Court has recently given definite sanction, serves to relieve officers of the government, under certain circumstances, from liability for injuries inflicted upon aliens in the course of their official duty. Burdick states the principle as follows:

"When an act, injurious to a foreigner, and which might otherwise afford a ground of action, is done by a British subject, and the act is adopted by the British government, it becomes an act of the State, and the private right of action becomes merged in the international question which arises between the British government and that of the foreigner." 3 These injuries are usually committed upon foreigners by naval or military officers, or by representatives of the government abroad, in dependencies or colonies. When the act has been adopted by the state as its own act, it covers the officer with the shield of immunity possessed by the state itself. The court has jurisdiction merely to establish the fact of the "act of state," and in the event of an affirmative determination, the act and those responsible for it escape the jurisdiction of municipal courts. Where the victim is the subject of

L. R. 442. Liability for acts of public servants, by W. Harrison Moore, 23 Law Quar. Rev. (1907), 12-27. Liability of officers acting in a judicial capacity at the common law, by Arthur Biddle, 15 Amer. L. Rev. (1881), 427–448, 491–509; Liability of public officers to private actions for neglect of official duty, by T. M. Cooley, 3 Southern L. R. (1877), 531-552; Bonnard, op. cit., 97 et seq., 42 et seq.

It is to be noted that the state as well as the local corporation may and frequently does indemnify its officers for liability which they may incur in the discharge of their duties. Mechem, op. cit., § 879; Goodnow, op. cit., 160.

1 Mechem, op. cit., § 662 and cases cited. See also Hopkins v. Clemson College, 221 U. S. 636, 644; Ex parte Young, 209 U. S. 123.

2 Mechem, op. cit., § 789 et seq. Exceptions noted in § 790; Salmond, J. W., The law of torts, 3rd ed., London, 1912, p. 55.

3 Burdick, op. cit., 37. See also definition of James Stephen quoted in Moore, W. Harrison, Act of state in English law, London, 1906, p. 93; Pollock, F., The law of torts, 8th ed., London, 1908, p. 111; 1 Encyc. of the laws of England, 2nd ed., p. 142.

The "Act of State" doctrine by H. T. Kingsbury, 4 A. J. I. L. (1910),

a weak state, the international remedy, which remains open, is quite ineffectual.

The highest executive officer and the ministers of state are usually more fully protected from judicial control and civil liability than other officers. Over their jurisdiction, there is in most countries no judicial control, and over their personal acts, in most of the European countries generally and in Latin-America, such control depends upon the preliminary authorization of the legislature. In AngloAmerican law, the highest executive officers are practically free from judicial control. But inasmuch as they act generally through subordinates, who are responsible for their actions and are not protected by the fact that they have acted on instructions from superiors, this immunity from judicial control is not so absolute as it might seem.2 In most countries, there is a large parliamentary and political responsibility, usually fixed in the Constitution, and a certain criminal responsibility.

§ 72. Foreign States in Municipal Courts.

Having discussed at some length the liability to suit of the state and its organs and instruments of administration in its national courts, we may for a moment turn to the question of the suability of the state before foreign courts. It is a general rule of international law that courts will not exercise jurisdiction over foreign states, unless the action concerns local real estate or unless the foreign state voluntarily submits to the jurisdiction. The physical presence of movable property of the foreign state within the territory does not confer 359-372. The leading cases in Great Britain have been: Buron v. Denman (1848), 2 Exch. 167; Luby v. Wodehouse, 17 Irish C. L. R. 618; Tandy v. Westmoreland, 27 State Trials, 1246, 1264; Poll v. Lord Advocate (1899), 1 Fraser, 823; Musgrave v. Chung Teeong Toy (1891), A. C. 272; in the United States, The Paquete Habana, 189 U. S. 453, 465; O'Reilly de Camara v. Brooke, 209 U. S. 45, 52 (see criticism in Kingsbury's article, 364 et seq.); Chuoco Tiaco v. Forbes, decided May 5, 1913 (228 U. S. 549). Justice Holmes decided all three cases. See also Wiggins v. U. S., 3 Ct. Cl. 412.

1 De la responsabilité civile des ministres, by A. Vacherot, 13 Rev. Pol. et Parl. 38, pp. 251-270; De la responsabilité pécuniaire des ministres, by Ch. Roussel, 7 Rev. Dr. Pub. (1897), 385-416; Petel, A., De la responsabilité du ministère public, Paris,

* Goodnow, op. cit., II, 164–166.

jurisdiction over the foreign state. In the Hellfeld case in Germany it was held that even though a foreign state (Russia) sues an individual and submits to a counterclaim, no execution can issue against the foreign state, notwithstanding the fact that it possesses property within the territory. The immunity of the foreign state extends to its sovereign, its ambassadors, and its public property. Attachment and garnishment proceedings against the property of foreign states or sovereigns are almost uniformly dismissed. Exceptions to these rules have been made in some cases by the courts of Belgium and Italy, which seem to have adopted the distinction of administrative law between transactions of the state jure imperii and jure gestionis, and to have exercised jurisdiction in the latter case.1

1 These questions are discussed at some length in the chapter on Contractual Claims, infra, § 118. In addition to the literature there cited, of which the work by Loening and the article by Droop in 26 Gruchot's Beiträge, 289–316, on comparative law, are the most illuminating, see De Paepe, Etude sur la compétence civile à l'égard des Etats étrangers, Bruxelles, 1894 and Féraud-Giraud, Etats et souverains, personnel diplomatique et personnes civiles devant les tribunaux étrangers, Paris, 1895; and articles on the subject by A. Hartmann in 22 R. D. I. (1890), 425– 437; by C. F. Gabba in 15 Clunet (1888), 180–191, 16 Clunet (1889), 538–554 and 17 Clunet (1890), 27–41, and in 51 Giurisprudenza italiana, 65–80; by Cuvelier in 20 R. D. I. (1888), 109–131; and by von Bar in 12 Clunet (1885), 645-657. On the Hellfeld case (translated in 5 A. J. I. L., 1911, 490-519), see besides the work by Brie, Fischer and Fleischmann, the series of articles by Kohler, Laband, Meili and Seuffert in 4 Ztschr. f. Völkerrecht, 309 et seq., summarized by Julius Hirschfield in Journ. of Comp. Leg., March, 1911, 300-303, and the legal opinion of Conrad Bornhak in the case, printed in 5 Jahrbuch d. öff. Rechts (1911), 230-266. A severe criticism of the exceptional line of decisions of the Italian courts on this question is contained in two articles by Dionisio Anzilotti in 5 Ztschr. f. int. Priv. u. Strafrecht (1895), 24-37 and 138-147. Clunet makes it a point to report cases involving suits against foreign states and sovereigns in municipal courts.

CHAPTER IV

INTERNATIONAL RESPONSIBILITY OF THE STATE

§ 73. General Principles.

In preceding chapters we have examined the rights of aliens and the responsibility of the state and its officers, in municipal law, for a violation of the rights of the alien. We are now prepared to examine the final phase of the obligation of the state toward the alien and its responsibility for an infringement of his rights. This phase is the international liability of the delinquent state toward the alien's home state.1

In the absence of an international legislature or court of justice the standard of duty of the state toward aliens and its international

1 Funck-Brentano and Sorel (Precis du dr. des gens, 1877, p. 224), state that it was at one time asserted by a certain school of international law that reciprocal responsibility of states was incompatible with full sovereignty, and that the state was the judge of its own responsibility. With the growth of international intercourse, that theory has long been abandoned.

The subject of state responsibility in international law has been more or less neglected by writers, notwithstanding its great importance. The best works on the theory of the subject are: Anzilotti, D., Teoria generale della responsabilità dello Stato nel diritto internazionale, Florence, 1902, published in French, considerably paraphrased, in 13 R. G. D. I. P. (1906), 5-29, 285-309, and Marinoni, Mario, La responsabilità degli stati per gli atti dei loro rappresentanti secondi il diritto internazionale, Rome, 1914. See also Benjamin, Fritz, Haftung des Staats aus dem Verschulden seiner Organe nach Völkerrecht, Breslau, 1909 (a Heidelberg dissertation). The following works devote some space to the subject: Leval, G., La protection diplomatique, Bruxelles, 1907, Part II, p. 125 et seq.; Tchernoff, T., Protection des nationaux, Paris, 1899, p. 271 et seq.; Lisboa, H., Les réclamations diplomatiques, Santiago, 1908. The subject is treated of briefly in the following general works: Oppenheim, I, ch. III, 206-225; Hall, 214-220; Halleck, I, ch. XIII; Hershey, ch. X; Pradier-Fodéré, I, §§ 196-210; Calvo, § 1261 et seq.; Fiore, §§ 659–679; Liszt, § 24; Triepel, 350; Gestoso y Acosta, I, 259–269; Olivart, I, 451–462; Seijas, III, 445-461 and in other volumes; Piédelièvre, I, 317-322; Bonfils, pt. I, ch. V; Bry, ch. X (1906 ed.), 454-461; Funck-Brentano and Sorel, 1877 ed., ch. XII, 224–230. Further literature will be cited under special topics.

responsibility for violation of its obligations may be considered the result of a gradual evolution in practice, states having in their mutual intercourse recognized certain duties as incumbent upon them. In the absence of a central authority to enforce this standard of duty upon the state of residence, international law has granted the home state of the alien who has suffered by a delinquency the right to demand and enforce compensation for the injuries sustained. The remedy for a violation of international duty toward aliens lies in a resort to diplomatic measures for the pecuniary reparation of the injury; and these measures may range from the diplomatic presentation of a pecuniary claim to war. Self-help, tempered by the peaceful instrumentalities of modern times, such as arbitration, is the ultimate sanction of international obligations. In this very fact lies the difficulty of the present subject, for powerful states have at times exacted from weak states a greater degree of responsibility than from states of their own strength. Nevertheless, fundamental principles have in the course of time, through a constant growth in the number of cases of protection and of international claims, become more clearly defined, so that a closer study of the subject may be fruitful of practical results.

It has already been remarked that international law imposes upon states the duty of according aliens certain rights and of assuring them of certain administrative and judicial protection. In almost every branch of international law, rules are found which limit the natural liberty of states by imposing upon them duties toward aliens. Any omission in these duties involves the responsibility of the delinquent state not only toward the individual directly (if so provided by municipal law), but also toward his home state, which in international theory is considered as injured in the person of its citizen. A state may limit its municipal responsibility by legislation, but not its international responsibility, which it incurs, under international law, to the national government of the alien. The national state enforces its own right, therefore, in presenting an international claim, although the pecuniary benefits of an indemnity may ultimately be awarded to the injured individual himself.

In considering the international responsibility of the state for de