(3) Commercial freedom of transit is guaranteed. That transit in time of war is included is evident from the Rules relating to belligerents.

(4) Free transit of vessels of war is guaranteed. That transit in time of war is included is evident from the Rules relating to belligerents.

(5) By implication, due to the absence of prohibitions in the Hay-Pauncefote Treaty, the United States has the right to fortify the Canal. By specific stipulation in the Hay-Bunau-Varilla Treaty she has that right, and in that stipulation has proclaimed her belief that the right exists. Further, this right is affirmed by the so-called Spooner Act of June 28, 1902, which, though a domestic law, is open to be read by the world.

The opinions are:

(1) The Canal is not neutralized in any proper sense of the word. (2) The free transit of vessels of war in time of war can not be held to apply to enemies of the United States when the United States is a party to the war. If Great Britain should ever become hostile, the treaty establishing the Rules would be suspended by the existence of war; with other possible maritime enemies the United States has no treaty.

(3) It is the duty of the United States to erect and garrison permanent defenses for the protection of the Canal.

H. S. KNAPP.

THE "ACT OF STATE" DOCTRINE

The field of international law in general is sharply demarked from that of municipal law, but it is the individuals, composing the population of the various states and nations, who furnish the points of contact where international friction may be generated. With the claims of a citizen or subject against his own government, and its officers and agencies, international law naturally has nothing to do. But when an individual asserts a claim against a government not his own, or against the individuals who carry on its operations, such a claim falls on one side or the other of the boundary between international law and municipal law, according to whether the claimant has or has not an adequate remedy in the ordinary courts of the state against which the claim exists. If he has, it is unusual for his own nation to take any cognizance of the matter at all. If he has not, it is then for his own nation to determine whether to make the cause of the individual the cause of the nation. If it so determine, the boundary line is crossed, and the individual grievance becomes a matter of international adjustment and discussion, which may extend even to the arbitrament of war. In this way, what is really a mere cause of action may become a casus belli.

One of the most notable results of increasing civilization has been the ever-growing recognition of the rights of the stranger. The more completely such rights are recognized and vindicated by the internal authorities and tribunals, the less occasion there is for resort to external diplomatic pressure, and the less danger there is of interna

tional friction.

Thus the development of municipal law upon this subject has an important bearing upon international law. The phase of this development now to be discussed is the so-called "Act of State" doctrine, particularly as exemplified by certain decisions of the courts of England and the United States.

This doctrine may be briefly and baldly stated as follows: An act, which would otherwise be an actionable wrong, may be so

authorized or adopted by a government as to make it an "Act of State" for which no individual is personally liable, and for which the government can be made responsible only through its own grace or through international recourse. The broader the application of this doctrine becomes, the more cases there will be in which an individual with a real or fancied grievance will find himself unable to secure a judicial determination of the justice of his claim, and thus the larger will be the possible field of international dispute.

Practically all civilized nations provide some method by which claims of a contractual nature against their governments may be presented for determination by a judicial tribunal. Where this remedy is extended to foreigners, as it usually is, and where the tribunal is an independent court of justice, free from executive domination, there is nothing for international cognizance, even if error be committed or injustice done in a particular case. But where the claim "sounds in tort," there is usually no recourse against the government in its own courts, and the only remedy is against the individual officer who performed or directed the act complained of, leaving to his government the duty to indemnify him in a proper case through extra-judicial channels. This course is somewhat circuitous, and imposes upon a successful claimant the risk of losing the fruits of his victory if the nominal defendant is execution-proof and the government does not see fit to provide an indemnity for the claimant's benefit. In the long run, however, it probably works out as near an approach to substantial justice as any other legal machinery. The theory is apparently this: the king or the statecan do no wrong, but the individual officers who administer the government may and not infrequently do. When they do so, they are responsible to the person injured, but if their acts were done in good faith in the service of the state, the state will make good the loss of its servants. So far so good; but here sometimes comes in, as an obstacle to justice, the "Act of State" doctrine, to relieve the individual without subjecting the government to any liability except in the international forum.

In English jurisprudence, this doctrine seems to have been very broadly asserted at one time by zealous Crown lawyers, and accepted

by subservient courts, even to the point of allowing a plea that the matters in controversy constituted an "Act of State to oust the jurisdiction of the ordinary courts altogether. But as the courts gradually established their independence of the executive, the doctrine received further and further limitations, until the earlier claims of complete exemption were given up and may be disregarded for the purposes of this discussion, which is intended to treat of certain present aspects of the doctrine, rather than of its historical development in detail.

One of the leading cases is Buron v. Denman, reported in 2 Exchequer, 166. The defendant in this case, Commander Denman of the British Navy, was carrying on a campaign against the African slave trade. In its course he burned plaintiff's slave barracoons at Gallinas on the West Coast of Africa, and liberated a large number of slaves. Gallinas was situated in territory under native control, where, “according to the evidence on both sides, it was lawful to possess slaves." Plaintiff, a subject of Spain, brought an action in trespass in the English courts. The defendant pleaded that his acts had been ratified and approved by the Admiralty, and thus adopted as an "Act of State" for which he was not personally liable. The case was tried before Baron Parke, who held that the acts complained of in themselves constituted a tort, but left it to the jury to determine the question of governmental ratification, pointing out that by such ratification

the character of the act becomes altered, for the ratification does not give the party injured the double option of bringing his action against the agent who committed the trespass or the principal who ratified it, but a remedy against the Crown only (such as it is) and actually exempts from all liability the person who commits the trespass.

The essence of this decision is well indicated by Professor Dicey in his masterly work on the English Constitution, where he says:

What the judgment in Buron v. Denman shows is, that an act done by an English military or naval officer in a foreign country to a foreigner, in discharge of orders received from the Crown, may be an act of war, but does not constitute any breach of law for which an action can be brought against the officer in an English Court.2

1 See W. Harrison Moore's "Act of State in English Law," pp. 4-31.

2 Law of the Constitution, 7th ed., p. 362, note 3.

This goes to the root of the matter. Where an "Act of State " injures an individual foreigner, it passes from the domain of law to the domain of force and becomes an act of war waged by a government against an individual, with somewhat overwhelming odds in the government's favor, and with no redress for the injured party even in his own courts.3 In the Denman case the facts may have justified the use of such methods. The British Government was carrying on what amounted to a war, not against a nation, but against an institution - slavery - which advancing civilization was sloughing off; and judicial opinion, reflecting as it always must to some extent general public opinion, gave its sanction to war

measures.

Subsequent decisions by the English courts show that they have recognized the necessity of setting strict limits to this dangerous doctrine. They have accordingly held that whether or not an act done under color of office is an "Act of State" is a justiciable question, within the jurisdiction of the civil courts, and that even authorization by the Crown is no defense unless the Crown is acting within its constitutional rights.5

Parliamentary authorization stands on a different basis, in view of the supreme power of the British legislature, but this distinction does not apply in countries where the legislature as well as the executive is subject to constitutional limitations. The recent English cases do not squarely present the question whether an alien claimant is entitled to the same enforcement of law and measure of justice as a British subject, and it may be that the somewhat chauvinistic rule of the Denman case still holds. It hardly seems probable, however, that it would be applied except in a case where the controversy involved some question which was regarded as a "moral issue," like the suppression of the slave trade.

In the United States the question arose at an early stage of the nation's history, and was determined by such jurists as Marshall and Story in favor of the view that if an act was otherwise a trespass

3 Underhill v. Hernandez, 168 U. S. 250.

4 Musgrave r. Pulido, L. R. 5 App. Cases, Privy Council, 102.

5 Walker v. Baird, L. R. 1892 App. Cases, Privy Council, 491.