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in entering into the agreements mentioned "on the instructions of His Majesty through a Secretary of State.”
Now, the other parties to these agreements were persons whom the Commissioner and Governor, acting on behalf of the Crown, chose as representatives of the Masai tribe who with the Crown could enter into such agreements. The Masai tribe as living within the limits of the East Africa Protectorate are not subjects of the Crown, nor is East Africa British territory. But East Africa being a Protectorate in which the Crown has jurisdiction is in relation to the Crown a foreign country under its protection, and its native inhabitants are not subjects owing allegiance to the Crown but protected foreigners, who, in return for that protection, owe obedience.
For this view as to the status of a protectorate "which has never been acquired by settlement, or ceded to, or conquered, or annexed by His Majesty, or recognized by His Majesty as part of his dominions,” and of the status of the native inhabitants thereof, I need only refer to the case of the King v. the Earl of Crewe (2 K. B., 1910, p. 577).
The real parties to these two agreements are therefore on one side The Crown, and on the other the Paramount Chief and leading representatives of a native tribe in a foreign country under the protection of the Crown.
The main matters which are the subject of the agreements are the areas which the protecting power of the country is to reserve for that tribe as apart and distinct from the subjects of the Crown living in the same country.
In my opinion there is here no legal contract as alleged between the Protectorate Government and the Masai signatories of the agreements, but the agreements are in fact treaties between the Crown and the representatives of the Masai, a foreign tribe living under its protection. I will now consider the plaintiffs' claims and the acts of which they complain.
The plaintiffs claim as individuals and also on behalf of the Masai of Laikipia, and also on behalf of the Masai tribe generally, that the treaty made between the Masai and His Majesty's late Commissioner, Sir Donald Stewart, in 1904, is still in force and effect, and that the obligations undertaken therein are still binding on His Majesty's Government.
The defendants Nos. 2–19 are brought on the record as signatories to the agreement made in 1911 whereby they agreed that they and the
other Masai should leave Laikipia; these defendants having no authority to enter into such an agreement and such agreement being void except as regard the said defendants.
The first three plaintiffs and the other Masai of Laikipia have been and are being wrongfully removed from the Laikipia district in breach of the said agreement of 1904.
The plaintiffs therefore claim.
I. A declaration against the defendants Nos. 1, 20 and 21 that the plaintiff and the other Masai of Laikipia and the other members of the Masai tribe generally, with the exception of the defendants Nos. 2 to 19 inclusive, are still entitled to
(a) The Laikipia district extended as aforesaid as equitable
tenants in common in unbarable entail; and (b) To an easement of road as aforesaid between the Northern
and Southern Masai Reserves; and (c) That the 1911 agreement is not binding on the plaintiffs and
the other Masai of Laikipia and the other members of the Masai tribe generally with the exception of the defendants Nos. 2–19.
II. To £5,000 damages against the 1st defendant for failing to provide the road as agreed in the 1904 agreement; and
III. To an inquiry as to damages against the 1st, the 20th, and 21st defendants
(a) arising from the death of stock occasioned by such stock
being illegally removed from the Laikipia district; (b) arising from the depreciation on the value of stock wrong
fully removed from the said Laikipia district.
IV. All necessary accounts and inquiries and such further and other relief as the nature of the case may require.
V. As against the 20th and 21st defendants an injunction restraining them from preventing the return of the plaintiffs and their stock to the Laikipia district; and against them compelling any of the Laikipia Masai and their stock to move from the said Laikipia district.
the Crown, and Nos. I, III and V also against the 20th and 21st defendants on the grounds that the government having by the 1904 agreement become trustees for the Masai, they failed to execute their trust, but entered into another agreement in 1911 contrary to the former one and derogatory to the interests of their cestui que trusts, and that the later agreement was obtained by duress, and is further not binding as it has not received the approval of the tribe, and that the losses they allege they have suffered are due to the government executing the terms of the second agreement in violation of the first, which still continued to exist.
Now, are the acts of defendants complained of by the plaintiffs Acts of State?
The answer to this is, in my opinion, contained in my finding that both the agreements are in fact treaties. For it follows from that finding that there was no such contractual relationship as alleged between the parties, and that in this action the plaintiffs are seeking by means of the court to enforce the provisions of a treaty.
The Paramount Chief himself could not bring such an action, still less can his people (Feather v. Queen, 35 L. J. K. B., 208 and Buron v. Denman, 2 Excheq. 167).
As regards the plea of duress and the want of approval of the tribe to the second agreement, as affecting its validity, it is not within the competence of this court, having held the agreement to be a treaty, to consider its validity as affected either by the pourparlers before its signature or a want of authority on the part of the signatories.
As to the alleged losses incurred by the plaintiffs, they themselves plead that defendants 20 and 21 were the agents of the government acting in pursuance of the orders of the government or Secretary of State in carrying out the second agreement, which pleading is accepted by both of these defendants as their defence. Such an action as against them is founded on tort and will not lie, and their acts in carrying out the terms of a treaty having been on instructions from and adopted by the government are as much Acts of State as the treaty itself.
Relief V claimed as against these defendants for similar reasons is not one that this court could grant as it would in its crudest form be an injunction to officers of the government to prevent them carrying out an Act of State.
The remaining defendants on the record are merely nominal as signatories to the 1911 agreement and no relief is claimed as against them.
I hold therefore on the issue before me that the acts of the defendants
complained of by the plaintiffs are in fact Acts of State which are not cognizable by a municipal court.
The Crown, acting through its Commissioner, first made one treaty with the Masai, and subsequently acting through the Governor modified that treaty by another, and I cannot do better than adapt to the present case the concluding words of Lord Kingsdown in giving judgment in the Privy Council in the case of Secretary of State for India v. K. B. Sahaba (XIII Moore 22): “It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations into which this court cannot enter. It is sufficient to say that even if a wrong has been done, it is a wrong for which no municipal court of justice can afford a remedy." The action is dismissed with costs.
R. W. HAMILTON. 26 May, 1913.
Mr. Justice Pitney delivered the opinion of the court.
The petitioner, an unmarried woman and a native of Russia, came to the United States in the year 1897 or 1898, at the age of about twelve years, accompanied by a man who had promised to marry her, and during the four years immediately following she practiced prostitution in the City of New York and supported her companion with the proceeds of her prostitution; she then left that city, and thereafter continuously practiced prostitution in various parts of the United States, including different towns and cities in the States of Washington, Arizona, and Texas. In the month of March, 1908, she returned to Russia for the purpose of visiting her mother, intending at the same time to return to this country; she reëntered the United States at the port of New York in June, 1908, accompanied by her mother, at which time petitioner falsely represented, for the purpose of facilitating her landing, that she was Mrs. Joseph Fiore, and the wife of an American citizen; at the time of this, her second entry, she intended to continue the practice of prostitution in the United States, and almost immediately upon being admitted she engaged in that practice, and was continually engaged in it until September 21, 1909, on which date she was arrested in a house of prostitution in Phænix, Arizona, upon a warrant of arrest duly issued by the Acting Secretary of Commerce and Labor under the provisions of the Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898. Upon a hearing properly accorded to her, the foregoing facts were established, and an order of deportation was made upon the ground that she was a prostitute and was such at the time of her entry into the United States; that she entered the United States for the purpose of prostitution; and that she had been found an inmate of a house of prostitution and practicing the same within three years after her entry. She obtained a writ of habeas corpus, which, after a hearing, was dismissed by the District Court for the Southern District of New York. Upon appeal, the Circuit Court of Appeals affirmed the order of dismissal (sub nom. Ex parte Hoffman, 179 Fed. Rep. 839). The present writ of certiorari was then allowed because of the division of judicial opinion upon the question presented, which is whether the provisions of the Immigration Act of 1907 respecting admission and deportation apply to an alien such as the petitioner, who, having remained in this country for more than three years (in this instance for more than ten years), after first entry, and having gone abroad for a temporary purpose and with the intention of returning, again seeks and gains admittance into the . United States.
The pertinent provisions of the Act of 1907 are set forth in the margin.1
1 Sec. 2. That the following classes of aliens shall be excluded from admission into the United States ... prostitutes, or women or girls coming into the United States for the purpose of prostitution or for any other immoral purpose; . . . 34 Stat. 898.
Sec. 3 ... any alien woman or girl who shall be found an inmate of a house of prostitution or practicing prostitution, at any time within three years after she shall have entered the United States, shall be deemed to be unlawfully within the United States and shall be deported as provided by sections twenty and twenty-one of this Act. 34 Stat. 899.
Sec. 20. That any alien who shall enter the United States in violation of law ... shall, upon the warrant of the Secretary of Commerce and Labor, be