of the Crown, outside British territory, and affecting aliens.39

As we have earlier had occasion to point out, it is of the essence of Anglo-American law that all public officials, with the possible exception of the titular sovereign or chief executive, should be held personally responsible by the ordinary or special administrative tribunals for their acts, official or private: that, in some cases they may be restrained from acts not warranted by their official powers; that, in other cases, affirmative action upon their part, in matters ministerial or non-discretionary in character may be compelled, and that, in all cases, they may be held responsible, criminally, or by way of civil damages, for acts in excess of their authority, or even for the arbitrary, malicious or otherwise wrongful use of their valid powers; and that, in all such cases, they cannot justify by appeal to orders given them by their political or administrative superiors, which those superiors did not have the legal right to give, or by appeal to statutes which the enacting legislature did not have the constitutional right to enact.

It would appear that, according to American jurisprudence this principle of official responsibility, and judicial

"Cobbett says: "The term 'Act of State' in English law strictly denotes a public act, or an act done by or under the authority of the Crown, outside the British territory, and affecting aliens" "Leading Cases on International Law, 3d ed., vol. I, p. 18.

Stephen says: "I understand by an Act of State an act injurious to the person or property of some person who is not at the time of the act a subject of Her Majesty's authority, civil or military, and is either previously sanctioned or subsequently ratified by Her Majesty." History of Criminal Law, vol II, p. 61. A little further on (p. 64) Stephen says: "In order to avoid misconception it is necessary to observe that the doctrine as to Acts of State can apply only to acts which affect foreigners, and which are done by the orders or with the ratification of the sovereign. As between the sovereign and his subject there can be no such thing as an Act of State."

In Johnstone v. Pedlar (2 Ap. Cas. 262) the House of Lords in 1921 held that a friendly resident alien was in the same position as an ordinary subject and that, therefore, there could not be, as to him, an Act of State.

control, applies as well to acts by American public officials committed abroad and affecting aliens, and authorized by the political department of the American Government, as it does to officially sanctioned acts committed within American territory and not affecting aliens.40

The English doctrine of "Act of State" in its special sense would appear to be that an alien has no right to judicial relief in case he is injured by the act of a British official, ordered or approved by the British Government, if committed outside British territory, either upon the high seas or within the limits of a foreign State. The leading case upon this point is Baron v. Denman,11 decided in 1840.

In that case, which was one of trespass against an alien and committed outside the British dominions, Justice

40 "It is, however, possible that an alien might not have an opportunity to bring an action against an American official, unless the alien could obtain entrance into the United States and thus furnish the American court with jurisdiction. Thus an alien illegally refused admission to the United States by an American official would not be able to bring the matter before the courts either for the purpose of securing admission or of obtaining damages against the official for his illegal act of exclusion, unless by statute he were given the right. It may be added that this is but an hypothetical case, for American statute law does provide means whereby aliens refused admission to the United States by administrative officials may have their right to enter determined, after a fair hearing, by the courts or by a superior administrative agency. It has been held that they are entitled, in this respect, to "due process of law," even though this may not mean a hearing in a court of law as distinguished from an administrative tribunal.

As regards English law upon this point we find the following declaration in Musgrove v. Chun Teeong Toy (L. R. Appeal Cases, 1891, p. 272) in which the Judicial Committee expressed what almost amounted to indignation that it should have been asked to pass upon certain very important imperial constitutional principles at the instance of an alien who had not, by reason of being within British territory, obtained a right to resort to the British courts. The Committee said: "No authority exists for the proposition that an alien has any such right. Circumstances may occur in which the refusal to permit an alien to land might be such an interference with international comity as would properly give rise to diplomatic remonstrance from the country of which he is a native, but it is quite another thing to assert that an alien excluded from any part of Her Majesty's dominions by the executive department there, can maintain an action in a British court."

"2 Ex. Rep. 166.

Parke, charging the jury, said: "If the Crown ratifies an act, 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."

In the much later case, Musgrove v. Chun Teeong Toy,42 as we have already seen, the court held that an alien could not question in an English court the right of a British official to prevent his entrance into British territory.

W. Harrison Moore, in his volume Act of State in English Law, published in 1906, after a review of cases, says "the question whether the Crown has by the Constitution the power to carry out the executory provisions of a treaty of peace to the detriment of private rights is then an open one. The case resembles the interference and destruction to which private rights of property are subject by the actual operations of war. If this be in virtue of some prerogative of the Crown as lord of war which suspends and supersedes the ordinary law, it would be natural that the like permanent power should extend to the conditions on which peace is to be restored. If, on the other hand, it is no case of prerogative, but a mere power not confined to the Crown or to war, limited by the proved necessity of the case, there appears nothing to prevent the application of the ordinary doctrine of the law, that the Crown has no power without act of Parliament to confiscate and supersede existing rights in its dominions." 43

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