Page:Harvard Law Review Volume 8.djvu/159

143 POWER TO DIVERT AN INTERSTATE RIVER. 143 ereign State. If a sovereign State does, or authorizes, an act inju- rious to the person or the property of some individual who is not a citizen of that State, the transaction is not the subject of investi- gation or redress in the courts of that State or of any other State. In a suit against the individual doing the act, it is a good plea that it was an Act of State, done by him under the authority of his own government. The diversion, by Massachusetts authority, of the Nashua River does not constitute an injury redressible by the courts, inasmuch as it falls within the class of transactions known as Acts of State. Such acts of a sovereign State " can be called in question only by war, or by an appeal to the justice of the State itself. " Such transactions are not governed by the laws which municipal courts administer. They will not be examined into by the courts of the State which authorized the acts. Nor can they effectually be inquired into by the courts of any other State. The latter courts have not the means of deciding what is right ; /'. e., "they have no authorititive legal standard or measure for such cases ; " nor have they in general " the power of enforcing " by legal process "any decision which they may make." The term " international law " is a misnomer. Law is here used only in the sense in which we speak of the "laws of society" or the "code of honor. " There are no " sanctions, " no commands propounded by a political superior to a political inferior, and enforced by legal penalties to be incurred in case of disobedience. Even if, by the consensus of mankind, a wrong has been done, " it is a wrong for which no municipal court can afford a remedy. " The alleged private right of action is treated as " merged in the international question which arises between" the State doing "the act and the other State of which the injured person is a subject. ^ We deny both the claims supposed to be advanced in behalf of Massachusetts. We take issue, both as to the right of Massachu- setts to do the act, and also as to the absence of legal remedy on the part of citizens of New Hampshire. Massachusetts, even if an entirely distinct and independent sov- ereignty, — even if standing to New Hampshire in the relation of France to Spain, — would not have a right, under the rules of international law, to do this act. The law of nations recognizes no such right, even between States wholly foreign to each other. s ^ 2 Stephen's History of Criminal Law of England, ^1-65 ; Pollock on Torts 2dEng.ed. 98-100; Clerk & Lindsell on Torts, 27,28; Holmes's note, i KentCom.i, quoting Austin.