contract subject in so far to the rules and provisions of private law. Its jurisdictional faculties, as a political entity, are not affected, nor are they in the least impaired; it acts as a civil person, and nothing further is involved than the revenues of the exchequer.

If the contracting government fails in its promises, the individual has a clear and defined judicial action before the courts or the administrative commissions of accounts or others, which is equiva lent to a tribunal, designated for these cases in the country of the

contract.

Difficulty might arise if the government were to claim exemption and invoke its character of sovereign as an excuse for not answering before the tribunals for its obligations of private law, but that difficulty may, in reality, be considered as purely academic. The legislation of the great majority, if not of all the civilized countries, provides for these cases special tribunals or courts of claims with competent jurisdiction.

Some times a legal fiction serves to spare the susceptibility of the sovereign. Thus in England there would strictly be no way of repairing wrongs that emanate from the Crown, since it is a funda mental principle of English institutions that the King can do no wrong and commit no unlawful act. Private rights are, however, perfectly guaranteed by an ingenious procedure which saves absolutely the Royal prerogative. The law permits the individual to present to the King a petition called "Petition of Right," which in reality is equivalent to a demand, and as it is presumed "that the King can know of no wrong without immediately repairing it," he hastens to submit the case to justice.5

In the Argentine Republic, and in the majority of the South

"That the sovereign can, in his own person, do no wrong is a fundamental principle of the English Constitution; yet his acts may in them

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selves be contrary to law and subject on that ground to reversal. For whenever it happens that by misinformation or inadvertence the sovereign hath been induced to invade the private rights of any subject, and becomes by a proper representation informed of the injury sustained, - the law always then presumes that to know of any injury and to redress it, are inseparable in the Royal breast; and issues as of course, in the Sovereign's own name, an order to his judges to do justice to the party aggrieved." Stephens, Commentaries on the Laws of England, 9th edition, vol. 3, page 666. Compare New Commentaries on the Laws of England, by the same author, vol. 3, page 621.

American States the federal government may be cited without previous consent, and the same is true of all our provinces in matters of local administration without distinguishing whether the claimants are native or foreign.

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In this respect we have gone further than the United States. There the government cannot be brought to court, but citizens have the right, in matters of contract with the executive, to bring action in the Court of Claims. Foreigners have not this right, unless the governments of their allegiance accord the same privilege to the citizens of the United States.7

The Argentine note of December 29, 1902, deliberately excluded this class of relations and claims" for whose adequate appreciation it said "the laws of the respective countries would have to be consulted," and confined its attention solely to the forcible collection of the interest on bonds of public debt. These bonds constitute, in effect, an exceptional class of obligations, not to be confused with any other. They are issued by virtue of the sovereign power of the state, as is its currency, they are authorized by legislation and do not present any of the general characteristics of the contracts of private law, since there is no person specified in whose favor the obligations are incurred, payment being promised always to the bearer without discrimination.

The creditor in turn advances the money not in the form of an ordinary contract de mutuo, but purchasing the bonds in the open market without other formality or relation with the debtor government. When payment on a public debt is suspended there is no such thing as an appeal to the government nor is there judicial action in the courts, because the interruption in the payments occurs in virtue of the sovereign authority of the state, manifested jure imperii.

Amendment 11 to the Constitution in accordance with Hamilton's theory. Hamilton, who wrote in 1788, occupied himself alone with the domestic phase of American judicial administration, and not, as some have erroneously affirmed, with the collection of foreign loans unknown at that time. (Federalist LXXXI.) From the time of the appearance of The Federalist until long after Hamilton's death (1804), the attention of the entire world was furthermore absorbed by the French revolution and by the wars of Napoleon I. The forcible collection of the debts of one nation by another could not even have been foreseen at that time.

'Revised Statutes, 1878, section 1068.

And this is what marks the essential difference in the law of nations between the two orders of state obligations, namely, those derived strictly from contracts of private law and those that arise from public loans. In the former the government which acts administratively as a party, jure gestoni, is or may be, as we have said, cited to answer for its acts or omissions before a tribunal or court of claims according to the provisions of jurisdiction established by its own institutions. If there is no tribunal which has jurisdiction over this class of litigation, it is conceived that such can be created at any moment, spontaneously or through diplomatic intervention. The entire absence of any tribunal or court of claims at a given moment and the flagrant injustices that may be committed where they existed in violation of the laws, fall under the general category of "Denial of Justice" or Notorious Injustice," which is its equivalent, and give rise to diplomatic action perfectly well defined by international uses as in the other ordinary cases of violation of the laws of nations. In this respect the Argentine note very clearly states that it does not claim for the South American countries any exceptional situation in their relations to the Powers of Europe

which have the right to protect their subjects as amply as in any and every other part of the globe against the persecutions and injustices of which they may be the victims.8

It is only where justice has been denied or unreasonably delayed by the courts of justice of foreign countries, where these are used as instruments to oppress American citizens or deprive them of their just rights, that they are warranted in appealing to their government to interpose."

In the application of these principles the United States has set us a splendid example of equanimity and prudence. The eminent Secretary of State Mr. Seward wrote in 1866 to the American Minister in Colombia:

"In case of failure to execute such contracts or engagements, the competent tribunals are the only ones qualified to arrange the conflicts and to apply the laws. Before the preliminary examination of the reciprocal relations between the contracting party shall have been made by the tribunals, the government of the foreigners interested could never intervene effectively. A serious and effective intervention could only be approved in the case of a denial of justice evident and formally proven." Martens, "Par la Justice vers la Paix," Paris. Page 31.

Secretary of State Mr. Buchanan to Mr. Osma, Peruvian Minister, February 1, 1848. Moore's Digest of International Law, vol. 2, page 87.

We are unfortunately too familiar with complaints of the delay and inefficiency of the courts in the South American Republics. We must, however, continue to repose confidence in their independence and integrity, or we must take the broad ground that those states are like those of Oriental semi-civilized countries, outside the pale within which the law of nations, as generally accepted by Christendom, is understood to govern. The people who go to these regions and encounter great risks, in the hope of great rewards, must be regarded as taking all the circumstances into consideration, and cannot with reason ask their governments to complain that they stand on a common footing with native subjects in respect to the alleged wants of an able, strong, and conscientious judiciary. We cannot undertake to supervise the arrangements of the whole world for litigation, because American citizens voluntarily expose themselves to be concerned in their deficiencies.10

Claims arising from foreign loans have necessarily to follow a different course and consequently give rise to reflections of another kind. In respect of these there is not and cannot be any "denial of justice," because not only does there not exist a tribunal competent to bring action against the debtor state, but it is impossible even hypothetically to conceive of such a tribunal.11

The same would be true of an attempt to bring to judgment a nation that had declared the forcible circulation of its paper currency. The sovereignty of the claimant state thus finds itself face to face with the debtor sovereignty without prescribed process and by virtue of facts that by their nature correspond to the exercise of the essential faculties of independence and self-government.

Thus formulated the question has given rise to very diverse opinions. Many hold to the circular of Lord Palmerston of 1848, confirmed in 1880 by Lord Salisbury, according to which the right of military intervention is indisputable, it to be decided in each case

10 Moore's Digest of International Law, vol. 6, page 660.

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con

There are conflicting views as to whether claims' includes bonds, fers jurisdiction by the use of that term to entertain a claim based upon government bonds. In the Colombian bond case (Convention with Colombia, 1864), it was held by Sir Frederick Bruce, as Umpire, that there was no jurisdiction in the tribunal to entertain the claim it is easy to see that many

reasons of policy exist which would deter a government from insisting on a preferential payment of a part only of the public creditors of a foreign state." Brewer and Butler, International Law, reproduced from the Encyc. of Law and Procedure, New York, 1906, page 1736, note 38.

whether it is advisable or not from simple considerations of expediency of purely national and domestic character.12

Others like Rivier consider that the fortune of the state is compromised in the investments that its subjects make and that an unavoidable duty of protection, which the author classes with those of self-preservation, obliges it to defend them from the financial mismanagement of foreign governments.13

At the time of the publication of the Argentine note the eminent authority on international law, Mr. Carlos Calvo, whose greatly to

"The complete text of Lord Palmerston's circular is found in Hall's International Law, 5th edition, pages 281 and 282. "A short time previously," says Hall, "Lord Palmerston, in answer to a question in the House of Commons, indicated that under certain circumstances he might be prepared to go to the length of using force." Hall, page 283. Discussing in the House of Commons the right of England to make war on Spain, because of its suspension of rayment of the interest on the national foreign debt, which occasioned serious injury to many English subjects, Lord Palmerston affirmed the right of the British government to make war on Spain for this reason, but stated that under the circumstances this policy was not advisable. Lord Palmerston's words are as follows: But this is a question of expediency, and not a question of power; therefore, let no foreign country who has done wrong to British subjects deceive itself by a false impression either that the British nation or the British Parliament will forever remain patient under the wrong; or that, if called upon to enforce the rights of the people of England, the government of England will not have ample power and means, too, at its command to obtain justice for them." Lord George Bentinck, who replied to Lord Palmerston, observed that after these words nothing more could be desired by the Spanish bondholders. "In the language of my noble friend, coupled with the course he has adopted upon former occasions as regards the payment of British subjects by Portugal and the South American states, the British holders of Spanish bonds have full security that he will exercise the same energy" in their behalf. Moore's Digest of International Law, vol. 6, page 286.

""The fortune of the individuals, subjects of the state, forms an element of the wealth and prosperity of that state. The continuance and increase of this fortune is a matter of interest. If, then, it is compromised by the act of a foreign state which administers ill its finances, which betrays the confidence which these individuals have reposed in it when they subscribed to its loan under conditions that were not observed, which violates its engagements towards them, the state to which the injured individuals belong is evidently authorized to take their interests in hand in the manner that it may deem advisable; it will act, either through diplomatic channels or by means of reprisals; all this in the measure that results from the principles of the law of reprisals and from those of intervention." Alphonse Rivier, Principes du Droit des Gens, Paris, 1896, vol. 1, page 272.