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nicipal measures enforcing the duty of such persons to make reparation.
(1) The constitution permits the extension of the jurisdiction of federal courts to controversies "between a state or the citizens thereof, and foreign states, citizens or subjects, ''32 but not to "suits in law or equity commenced or prosecuted against one of the United States by citizens or subjects of any foreign state." The exemption does not extend to suits prosecuted by foreign states. It therefore seems that so far as the constitution is concerned, a foreign state could bring action for reparation against one of the commonwealths of the union in the federal courts although its subjects acting individually could not. The statutes, however, have not provided for such a jurisdiction; consequently there have been no such actions. Foreign states have always asserted that the government of the United States is the only authority recognized by them as responsible, and have refused to have direct recourse to state governments, even when the state has offered to make indemnity.34
Some states have established courts of claims in which they may be sued under limitations,35 and a number of them have provided by law for the responsibility of cities and counties for property losses and lynchings. These methods of recovery are open
32Constitution, art. 3, sec. 2, cl. 1.
33 Constitution, Amendment II.
34 See case of French Privateers, 1811, in which the State of Georgia offered to make indemnity for injury to French seamen in Savannah. Moore's Digest, 6;809.
35 Illinois Act, Mch. 23, 1819, Laws 1819, p. 184; Act, Jan. 3, 1829, Rev. Laws, 1832, p. 593, repealed Rev. Stat. 1845, p. 464, permitting the auditor of Public Accounts to be sued for the state. Ill. Act, May 29, 1877, laws, 1877, p. 64, creating a commission of claims "to hear and determine all unadjudicated claims of all persons, against the state of Illinois" and submit them to the auditor of public accounts who is to lay them before the general assembly. Ill. Act, May 16, 1903, laws 1903, p. 140, creating a court of claims with a similar authority. See N. Y. Laws, 1870, c. 321; 1876, c.444; 1883, c.205; 1897, c.36; Mass. Rev. Laws, c.201. See Freund, Cases on Administrative Law, St. Paul, 1911, p. 363-367.
36 As examples, see Ill. Rev. Stat. 1913, c.38, sec. 256a-256g, p. 854, making a city or county liable for three-fourths damages for property losses caused by a mob of over twelve persons, with the proviso that such liability does not prevent recovery from individual perpetrators; c.28, sec. 256w, p. 857, creating a liability of $5000 upon counties and cities for lynchings, recoverable by the survivors of the person lynched.
to aliens or foreign sovereigns under the usual provisions opening courts to such persons.
(2) Recourse against private persons or officers of government may be had by either foreign individuals or sovereigns.37 Such suits may also be commenced in the name of a foreign state.38 Foreign states or persons bringing such suits have the advantage of the usual principles of law applicable to suits brought for the recovery of claims or damages by citizens.39 The foreigner in such a case has the additional advantage of an option in bringing his case in either the state or federal courts. By the constitution the jurisdiction of the federal courts may be extended to controversies "between a state or the citizens thereof, and foreign states, citizens or subjects," and statutes have provided for the exercise of this jurisdiction as to such suits against. citizens.40
The usual principles of liability of officers apply in suits brought by aliens as well as by citizens. In principle AngloAmerican law considers officers liable for wrongful acts, in which case they would be liable for torts violating international rights of foreign states or persons."1. The tendency, however, is to relieve officers from such liability either by statute or judicial deci
37 King of Spain vs. Oliver, 2 Wash. C.C. 429.
38The Saphire, 11 Wall 164 and Moore's Digest, 2;85-87. English cases, U. S. vs. Prioleau, 35 L. J. Ch. N. S. 7, (1865); U. S. vs. McRae, L. R. 8 Eq. 69, (1869); Moore's Digest, 1;65-66.
39 Cushing, Att. Gen., 7 op. 229, (1885); Taylor vs. Carpenter, 3 Story 458; State vs. Chue Fan, 42 Fed. Rep. 865; Crashley vs. Press Pub. Co., 179 N. Y. 27, (1904); Moore's Digest, 4;7-9.
40 Constitution art. 3, sec. 2, cl. I. United States district courts have jurisdiction of civil suits where the matter of controversy is over $3,000 "between citizens of a state and foreign states, citizens or subjects," (Judicial Code, 1911, 36 Stat. 1087, sec. 24, cl. 1) and "of all suits brought by any alien for a tort only in violation of the Law of Nations or of a treaty of the United States" (Ibid, sec. 24, cl. 17). All suits of which district courts have original jurisdiction, or in which the parties are of diverse citizenship and there is danger of local prejudice, may be removed from state courts to U. S. district courts by motion of the defendant. (Ibid. sec. 28). Most of these provisions were in the Judiciary act of 1789, Rev. Stat. sec. 563, cl. 16, sec. 629, cl. 1. Removal of cases involving aliens to circuit courts was provided in an act of Aug. 13, 1888, 25 Stat. 434, sec 2, on which see New Orleans Co., vs. Rabasse, 10 So. 708, Breedlove vs. Nicolet, 7 Pet. 413. The circuit courts were abolished by the judicial code of 1911, sec. 289.
41 Little vs. Barreme, 2 Cranch 170, (1804).
sion when they act in good faith, the state sometimes assuming the liability in such cases. The responsibility of private persons would be governed by the law of torts and contracts of the state where the action was brought, the same remedies generally being open to the alien as to a citizen.42
42 See reference to this mode of indemnification in letter of Secretary of State Bayard, For. Rel. 1886, p. 158, in reference to Chinese Outrages at Rock Springs, Wyo., 1885, in which reference is also made to the right of aliens to remove cases to federal courts. Moore's Digest, 6;831-832.
CHAPTER VII. INTRODUCTORY
The obligations of neutral states have been classified by Holland' as obligations of (1) abstention, (2) acquiescence and (3) prevention. To these Lawrence2 adds two, the duties of (4) restoration and (5) reparation.
(1) The obligations of abstention peculiar to neutrality relate to matters which the state itself must obstain from doing, and are outside of the jurisdiction of municipal law. Whether a state by performing its duties of abstention shall remain a neutral, or whether by refusing to perform them it intervenes and thus itself becomes a belligerent is a question which is always to be determined by the political departments of the goverment. Municipal law can not in any way effect the power of the state thus to exercise its sovereignty. It may be noted that certain acts of abstention are specifically required by one of the Hague conventions of 1907. Thus neutral states are required to abstain from partiality in dealing with belligerents, from supplying belligerent powers with "warships, ammunition, or war material of any kind," and from partiality in applying "conditions, restrictions and prohibitions" upon the admission of belligerent warships or prizes into their territorial waters. By the constitution treaties are declared to be a part of the law of the land; consequently these provisions might be regarded as rules of municipal law. In reality, as they are directory upon the state itself they can not be enforced by any regularly constituted state authority, so scarcely deserve that title. They are rules directory upon the political organs of government, but are not enforceable rules of municipal law. The duties of obstention discussed under the law of peace likewise apply to states in time of neutrality.
1T. E. Holland, Neutral Duties in Maritime War, Proceedings of the British Academy, 2;2, quoted Moore's Digest, 7;863.
2T. J. Lawrence, The Principles of International Law, 4th ed., N. Y., 1910, p. 629.
3 Hague Conventions, 1907, v, art. 9, xiii, arts. 6, 9.
4Constitution, art. vi, sec. 2.
(2) The neutral state's obligations of acquiescence are entirely passive. They require the state to submit without protest to incidental inconveniences and detractions from its ordinary rights under international law caused by the operation of acknowledged privileges of belligerents. The most prominent of these inconveniences is the loss to its subjects which results from the exercise of belligerent rights in interfering with maritime commerce such as the right of visit and search, seizure, and confiscation after adjudication for breach of blockade, contraband trade, unneutral service and similar acts. A neutral state must also acquiesce in occasional losses by its citizens resident in belligerent countries, when such losses are incidental to the conduct of hostilities. The duty of acquiescence simply requires the acknowledgment by the neutral state that the ordinary rights of its citizens under international law are modified in their relations with a belligerent community or state. The form which a breach of this duty would take would be the making of unwarranted diplomatic protests or intervention. As in the case of abstention both of these acts are prerogatives of sovereignty and incapable of limitation by municipal law. The duties of acquiescence connected with exemptions from territorial jurisdiction and servitudes apply to states in neutrality as well as in peace.
(3) The duty of prevention requires a state to prevent unneutral acts by its citizens and agencies of government, and the unneutral use of its territory. It is in this field that municipal law is most essential for the preservation of neutral obligations.
(4) The duty which Lawrence has in mind when he speaks of "restoration" is the duty which a neutral state is under to restore to the original owner prizes captured in its waters or illegally brought to its ports. It seems that the use of the term restoration as describing this duty is unfortunate as it implies that the duty is one owed to the power to whom the prize is restored. If this were true, if the owner of the vessel captured in violation of neutrality had a right to its restoration, he could make his claim if the vessel were in the custody of a belligerent as well as a neutral prize court. This, however, is not the case. It is a recognized principle that the owner of the vessel can not claim restoration in a belligerent prize court, on the ground that the seizure was in violation of the neutrality of a third state. The "Lawrence, op. cit., p. 649.
"A capture within neutral waters is, as between enemies, deemed to all intents and purposes rightful; it is only by the neutral sovereign that