139 N.E. 259 | NY | 1923
In Wulfsohn v. Russian Federated Soviet Republic (
If recognized, undoubtedly it may. (Republic of Honduras v.De Soto,
Comity may be defined as that reciprocal courtesy which one member of the family of nations owes to the others. It presupposes friendship. It assumes the prevalence of equity and justice. Experience points to the expediency of recognizing the legislative, executive and judicial acts of other powers. We do justice that justice may be done in return. "What is termed the comity of nations is the formal expression and ultimate result of that mutual respect accorded throughout the civilized world by the representatives of each sovereign power to those of every other in considering the effects of their official acts. Its source is a sentiment of reciprocal regard, founded on identity of position and similarity of institutions." (Fisher, Brown Co. v. Fielding,
The use of the word "comity" as expressing the basis *260 of jurisdiction has been criticized. It is, however, a mere question of definition. The principles lying behind the word are recognized. Whether or not we sum them up by one expression or another the truth remains that jurisdiction depends upon the law of the forum and this law in turn depends upon the public policy disclosed by the acts and declarations of the political departments of the government.
Does any rule of comity then require us to permit a suit by an unrecognized power? In view of the attitude of our government should we permit an action to be brought by the Soviet government? To both queries we must give a negative answer.
We may state at the outset that we find no precedent that a power not recognized by the United States may seek relief in our courts. Such intimations as exist are to the contrary. Statements are that "a recognized government may be a plaintiff." (Republicof Honduras v. De Soto,
What then is the meaning and effect of recognition in its relation to comity? It is difficult to find a clear discussion of this question, either in reports or in textbooks. Where a new government has seized power "no official intercourse is possible between the powers refusing recognition and the state concerned." "Through recognition the other states declare that they are ready to negotiate with such individual (a new ruler) as the highest organ of his state." (Oppenheim International Law [3d ed.], vol. 1, sections 77, 342.) Speaking of the recognition of a new state Wheaton (International Law *261 [2d ed.], p. 39) says: "So long, indeed, as the new state confines its action to its own citizens and to the limits of its own territory, it may well dispense with such recognition. But if it desires to enter into the great society of nations, all the members of which recognize rights to which they are mutually entitled, and duties which they may be called upon reciprocally to fulfil, such recognition becomes essentially necessary to the complete participation of the new state in all the advantages of this society. * * * The new state becomes entitled to the exercise of its external sovereignty as to those states only by whom that sovereignty has been recognized.") In Hyde's International Law (Vol. 1, sec. 37) is the statement that "the mode of recognition is not material, provided there be an unequivocal act indicating clearly that the new state is dealt with as such and is deemed to be entitled to exercise the privileges of statehood in the society of nations."
More assistance may be found in the reasons underlying various decisions of the courts as to the effect to be given to the acts of foreign governments. This effect depends upon our acknowledgment of the comity of nations. "The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests at last upon the highest considerations of international comity and expediency." (Oetjen
v. Central Leather Co.,
We reach the conclusion, therefore, that a foreign power brings an action in our courts not as a matter of right. Its power to do so is the creature of comity. Until such government is recognized by the United States, no such comity exists. The plaintiff concededly has not been so recognized. There is, therefore, no proper party before us. We may add that recognition and consequently the existence of comity is purely a matter for the determination of the legislative or executive departments of the government. Who is the sovereign of a territory is a political question. In any case where that question is in dispute the courts are bound by the decision reached by those departments. (Jones v. U.S., *263
We are the more ready to reach this conclusion because to hold otherwise might tend to nullify the rule that public policy must always prevail over comity. More than once during the last seventy years our relations with one or another existing but unrecognized government have been of so critical a character that to permit it to recover in our courts funds which might strengthen it or which might even be used against our interests would be unwise. We should do nothing to thwart the policy which the United States has adopted. Yet unless recognition is the test of the right to sue we do not see why Maximilian as emperor of Mexico might not have maintained an action here.
With regard to the present Russian government the case is still stronger, even did comity not depend on recognition. We not only refuse to recognize it. Our state department gives the reasons. Secretary Colby has stated them in an official note, dated August 10, 1920. He begins by saying that our government will not participate in any plan for the expansion of the armistice negotiations between Russia and Poland into a general European conference, "which would in all probability involve two results, from both of which this country strongly recoils, viz.: The recognition of the Bolshevist regime and a settlement of the Russian problem *264 almost inevitably upon the basis of a dismemberment of Russia." He continues, "We are unwilling that while it is helpless in the grip of a non-representative government whose only sanction is brutal force, Russia shall be weakened still further by a policy of dismemberment, conceived in other than Russian interests. * * * The Bolsheviki, although in number an inconsiderable minority of the people, by force and cunning seized the powers and machinery of government, and have continued to use them with savage oppression to maintain themselves in power. * * * It is not possible for the government of the United States to recognize the present rulers of Russia as a government with which the relations common to friendly governments can be maintained. * * * The existing regime in Russia is based upon the negation of every principle of honor and good faith, and every usage and convention, underlying the whole structure of international law, the negation, in short, of every principle upon which it is possible to base harmonious and trustful relations, whether of nations or of individuals. The responsible leaders of the regime have frequently and openly boasted that they are willing to sign agreements and undertakings with foreign powers while not having the slightest intention of observing such undertakings or carrying out such agreements. * * * They have made it quite plain that they intend to use every means * * * to promote revolutionary movements in other countries. * * * In the view of this government, there cannot be any common ground upon which it can stand with a power whose conceptions of international relations are so entirely alien to its own, so utterly repugnant to its moral sense. There can be no mutual confidence or trust, no respect even, if pledges are to be given and agreements made with a cynical repudiation of their obligations already in the mind of one of the parties. We cannot recognize, hold official relations with, or give friendly reception to the agents *265 of a government which is determined and bound to conspire against our institutions, whose diplomats will be the agitators of dangerous revolt, whose spokesmen say that they sign agreements with no intention of keeping them."
Our government has not receded from this position. Secretary Hughes in rejecting trade proposals of the Soviet, said on March 25, 1921, "It is only in the productivity of Russia that there is any hope for the Russian people, and it is idle to expect resumption of trade until the economic bases of production are securely established. Production is conditioned upon the safety of life, the recognition by firm guarantees of private property, the sanctity of contract and the rights of free labor," and he postpones any consideration of trade relations until such time as our government has convincing evidence of fundamental changes that will fulfill these conditions.
In the face of these declarations it is impossible to hold that to-day any such relations exist between the United States and Russia as call upon our courts to enforce rules in favor of the latter depending on the comity of nations.
The judgment appealed from should be affirmed, with costs.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN and CRANE, JJ., concur.
Judgment affirmed, etc. *266