Dissenting Opinion by
Mr. Justice Musmanno:Brief Statement on Scope of Dissenting Opinion
Involved in this case is an expropriation of the property of American citizens hy the Venezuelan government not only without fair compensation as required by International Law but with an accompanying arrogant refusal to even enter into any settlement negotiations. Moreover, the role of our State Department is most puzzling and inconsistent with its own expressed policy.
The plaintiff began its lawsuit after the State Department tried unsuccessfully to bring the Venezuelan Government to a conference discussion. After the action ivas filed, the State Department scheduled a hearing and received briefs to determine whether — as a matter of law, not policy — the Venezuelan Government was immune from suit under the Sovereign Immunity doctrine. The legal advisor of the Secretary of State decided as a legal matter that the Sovereign Immunity doctrine should be invoked and filed such a plea in behalf of the Venezuelan Government. In so doing the State Department obviously invaded the jurisdiction of the Courts and for that reason alone the judiciary must, approach the problem as if the State Department had not intervened at all.
Moreover, even if the State Department had decided to intervene because of some urgent policy considerations and not on the basis of the legal issues, the case is nevertheless subject to a judicial examination which *171quite conclusively demonstrates that the circumstances in this case do not warrant invocation of the Sovereign Immunity doctrine. At the outset we are instructed by the Supreme Court of the United States in the Republic of China case that the doctrine is not One which emanates from the Executive Department. On the contrary, the Court emphasized that it was judicially created, and, as such, is subject to judicial modification or even elimination, as changing times and circumstances require.
Indeed, even before the.official proclamation of the Department of State in the form of the Tate Bulletin there had been a gradual erosion of the doctrine so that courts were loathe to invoke the' doctrine except under the most compelling circumstances. The Tate Proclamation was by its own terms expressly intended to change the policy and leave the determination of the applicability of the policy to the courts. It specifically declared that the Department’s policy, thenceforth, would be “to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity.”
The Tate proclamation was rendered in 1952 and, therefore follows, in date, the decisions relied on by the Majority. The Republic of China case, the last expression of the Supreme Court on the subject, recognizes and points up this fact, giving express approval to the restrictive theory and the recognition of it in the Tate proclamation. The Supreme Court’s decision makes it quite clear, therefore, that the present policy of the United States Government is to follow the restrictive theory of sovereign immunity; and that the doctrine of absolute sovereign immunity ^should hot be- invoked except under the most compelling circumstances, as where national security is involved. Such is not remotely involved here.
*172History of Case
Chemical Natural Resources, Inc.,1 a Delaware corporation, with almost 100% of its capital stock held by American nationals, purchased in the early part of April, 1952, all the mineral rights in El Pilar, District of Benetez, Sucre, Venezuela. While conducting drilling operations' in that location, the plaintiff located -reservoirs of mineral-laden geothermal steam and other minerals of great pecuniary value. In the latter part of April of that year the plaintiff entered into an agreement with the Venezuelan agency known as CADAEE, whereby it would install an electricity generating system-and sell power to the Venezuelan Government. To accomplish the erection of the necessary power plants the plaintiff obligated itself to the extent of $25,000,000 for the purchase of equipment.
Suddenly, on August 29, 1959, the Venezuelan Government, without notice, and certainly without legal or moral justification of any kind, declared the plaintiff’s holdings nationalized and expropriated its property without compensation. Later the Venezuelan Government approached the plaintiff and sotto voce explained .that it should have no reason to fear for its investments nor for the result of its labors because the expropriation was merely a dramatic gesture made for political reasons. Venezuela urged thé plaintiff to continue to invest its skills, efforts and money.
Then, on September 7, 1959, the Venezuelan Government “cancelled” its agreement with the plaintiff but once more elaborately whispered into the plaintiff’s ear that political conditions being what they were, the Venezuelan Government had to assume an “anti-gringo” attitude, but that this was only a mask. Be*173hind the mask, Venezuela said, it was wholly friendly to the plaintiff, appreciated its interest in the development of the country and exhorted it to continue its operation.
Because of the many difficulties and harassments to which the plaintiff was constantly being subjected, in spite of Venezuela’s continuing assurances, it finally entered into a new contract with Venezuela which provided that for twenty-five years the plaintiff and Venezuela would equally divide profits on the operation and then, after amortization of the expenses involved, the property of the plaintiff would belong to Venezuela. Even with this lion’s share being assured it, Venezuela still was not satisfied and, in September, 1962, demonstrated that the anti-gringo mask, behind which it had spoken, was not a mask but its actual face. Venezuela abrogated all its contractual obligations and ordered the plaintiff to complete the erection of its plant, produce energy and sell it to Venezuela at a ruinous loss per kilowatt hour. This was confiscation — bare and unadorned. It defied international law and subjected the plaintiff to losses aggregating $116,807,258.88. The plaintiff turned to the United States government for protection and asked the Secretary of State to intercede in its behalf. The Venezuelan Government, however, refused to enter into any dismission whatsoever on the subject. The plaintiff thus was compelled to file an action in the court of common pleas for damages caused by breach of contract and illegal expropriation of private property without compensation. The plaintiff effected service by foreign attachment of one of the defendant’s commercial vessels'in the harbor of Philadelphia.
With an effrontery as bold as its order of'confiscation, the Republic of Venezuela now asked the government of the United States to plead Sovereign Immunity in its behalf. The State Department asked the plain*174tiff to dissolve its foreign attachment. The plaintiff did so with the understanding that Venezuela would then enter into amicable negotiations looking toward settlement of the claim, but if no settlement was effected, the suit against Venezuela would duly proceed. Venezuela refused to take a step toward the round table of conciliation and, instead, with ever-increasing brazenry, insisted on sovereign immunity from its indebtedness to the plaintiff. The Legal Adviser of the State Department conducted a hearing in the matter and eventually ruled, that, as a matter of law and not of policy, the Venezuelan Government was entitled to sovereign immunity and such a plea in the name of the State Department was filed in the court of common pleas on December 18, 1964. The court overruled the Suggestion of Immunity and refused to dismiss the complaint. The defendant appealed to this Court. In addition, the plaintiff filed here a petition for writ of mandamus and a writ of prohibition, naming as respondents the two judges in the lower court which had overruled the Suggestion of Foreign Immunity. The Majority of this Court quashed the appeal but ordered the issuance of the writ of prohibition directed to the judges of the lower court to dissolve the foreign attachment and the complaint.
Executive Department not Supreme
Surveying and appraising what has been done by Venezuela here, it would be difficult to conjure up a more flagrant violation of the property rights of American citizens who are being urged, in the interest of the Good Neighbor Policy, to invest in Latin America. The Majority Opinion says that no matter how unjust or unfair Venezuela has been to American citizens, to the American people, or even to our judicial system, this Court is powerless to protect Americans once the State Department hints Foreign Sovereign Immunity.
*175I believe that tbe Majority, in asserting such helplessness, not only does a great injustice to the plaintiff in this case but it works, in addition, an incalculable harm to the fundamental concept of our American form of government, namely, that each of its three departments acts independently of the other two and none is presumed to be infallible in the discharge. of its prescribed duties.
The Majority is of the opinion that once the Executive Department of our government speaks, the Judiciary Department may not question what the Executive Department has said or even inquire into the circumstances which brought about the Executive Department’s utterance. Nothing in the Constitution, no expression in statutory law, no precedent in court decisions, and, needless to say, nothing in the chronicles of deliberation of our founding fathers, does or can justify so startling a proposition. The decision of this Court is even more astonishing because the very Department which this Court declares infallible has denied infallibility and has specifically announced, as a matter of official policy, that foreign sovereign immunity in commercial transactions is something not to be decided unilaterally by the State Department, but is a matter for adjudication in the Courts.
On May 19, 1952, the State Department proclaimed what is officially known as 26 Department of State Bulletin 924, although it is often loosely referred to as the “Tate Letter.” The “Tate Letter” was no mere epistle advancing the views of an inconsequential correspondent. It was an official pronouncement of the State Department which had the effect of law. Columbia Broadcasting System v. United States, 316 U.S. 407, 417; A. T. and T. Co. v. United States, 299 U.S. 232.
That proclamation, which is admittedly still the present policy of the State Department, specifically declares : “The granting of sovereign immunity to foreign *176governments in the courts of the United States is most inconsistent with the action of the Government of the United States in subjecting itself to suit in these same courts in both contract and tort and with its long established policy of not claiming immunity in foreign jurisdictions for its merchant vessels. Finally, the Department feels the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts.” (Emphasis supplied.)
In 1952, the United States Supreme Court in the Republic of China case, 348 U.S. 356, juridically acknowledged this pronouncement of the State Department : “Recently the State Department has pronounced broadly against recognizing sovereign immunity for the commercial operations of a foreign government, 26 Dept. State Bull. 984.” (Emphasis supplied.) (p. 361)
The Majority Opinion in the case at bar quotes from that Republic of China case as follows: “The status of the Republic of China in our courts is a matter for determination by the Executive and is outside the competence of this Court. Accordingly, we start with the fact that the Republic and its governmental agencies enjoy a foreign sovereign’s immunities to the same extent as any other country duly recognized by the United States.” (Emphasis supplied.)
No one questions that the United States has recognized the Republic of China and that it enjoys sovereign immunity “to the same extent as any other country duly recognized by the United States.” Nor does anyone dispute another quotation from that case by the Majority Opinion, namely, “The freedom of a foreign sovereign from being haled into court as a defendant has impressive title-deeds ... it has since become part of the fabric of our law.”
*177.The Majority Opinion underscores the above quotation but it does not underscore what immediately follows, namely, “It has become such solely through adjudications of this Court.” I would add to that expression an exclamation point, and repeat that, to the extent that sovereign immunity exists, it is a creature of the Courts, not the Executive Department of our government. And what the Courts have created, they can take away.
The Majority Opinion cites no case and quotes from no decision of the Supreme Court of the United States which strips that Court of its power to determine whether sovereign immunity has been properly invoked. The Republic of China case, in fact, rules absolutely to the contrary. In rejecting the claim of sovereign immunity presented by the Republic of China in that case, Justice Frankfurter, speaking for the Court, said: “It is recognized that a counterclaim based on the subject matter of a sovereign’s suit is allowed to cut into the doctrine of immunity. This is proof positive that the doctrine is not absolute, and that considerations of fair play must be taken into account in its application.” (Emphasis supplied.) (p. 364)
What the Majority overlooks in this, its present decision, is that sovereign immunity is not a constitutional mandate. The Supreme Court spelled this out in the China case: “Unlike the special position accorded our States as party defendants by the Eleventh Amendment, the privileged position of a foreign state is not an explicit command of the Constitution. It rests on considerations of policy given legal sanction by this Court. To be sure, the nonsuability of the United States without its consent is likewise derived from considerations of policy. But these are of a different order from those that give a foreign nation such immunity.” (Emphasis supplied.) (pp. 358-59)
*178Of course, it is obvious and indisputable that where the nation’s security is involved, the Courts will support the foreign policy of the nation, as it is officially made known by the President of the United States. But that is not this case. It is not even close.. We have here outrightly a commercial transaction. We have here the case of American businessmen, under the most absolute assurance of safeguarding by Venezuela, going into Venezuela, investing huge sums of money to develop Venezuela's resources with .the official sanction and urging of the Venezuelean government, and then that same government confiscating, without compensation, the property of these American businessmen, property amounting, as already stated, to over a hundred million dollars.
The Venezuelean government knew, when it invited American investors into its country, that its commercial relations with American citizens would be governed by the restrictive immunity doctrine proclaimed by the State Department: It knew also, as the Supreme Court had declared, that sovereign immunity is not an absolute right, running concurrently with sovereignty, but is a limited defense which depends for its application upon the existence of “fair play” and the presence of due process. (348 U.S. 364). It further was aware that our courts make a distinction between governmental and proprietary activities of a foreign government defendant, and that sovereign immunity will be applicable only when a government acts as a government and not when it acts in a commercial, money-making enterprise.
Majority’s Erroneous Concept
The Majority Opinion in this case is built on an erroneous concept of the-law, namely, that once the State Department whispers sovereign immunity the *179Courts must close their doors to everyone who may come within the breeze of the zephyric suggestion. Fortunately, for the majesty of the law, the dignity of the courts, and the fair-minded administration of justice in America, that is not the case. In fact, that is not even the view of the State Department.2
The State Department intervened in this litigation on the basis of a question of law, not policy. In a letter to the President of the plaintiff corporation, Chemical Natural Eesources, Inc., the State Department said: “The decision of the Department of State in this matter was made in the light of legal issues.” (Emphasis supplied.)
Thus, it must be obvious that we are not here considering any question of United States foreign policy. We are adjudicating legal issues and I certainly should not have to emphasize that legal issues-are resolved by the judicial branch of our government, not the executive branch. As the Supreme Court of the United States declared in the Republic of China case: “The short of the matter is that we are not dealing with an attempt to bring a recognized foreign government into one of our courts as a defendant and subject it to the rule of law to which nongovernmental obligors must bow. We have a foreign government invoking our law but resisting a claim against it which fairly would curtail its recovery. It wants our law, like any other litigant, but it wants our law free from the claims of justice.” (p. 361)
The claims of justice guarantees to the plaintiffs here a forum in which to prosecute their, cáse against a foreign government, engaged in commercial enterprise, without in any way embarrassing our government. The court below in this case very properly said: “The position of the Legal Adviser to the State Depart*180ment, the Attorney General, the United States Attorney, and the defendant, appears to be that immediately on the filing of the suggestion of immunity this court must automatically dismiss the action, thus closing the doors of the court to an American corporation, predominantly owned by American citizens, seeking redress against a foreign country alleged to have violated its solemn agreements and confiscated private property without compensation. We do not understand the law to require this judicial abdication.”
Although the Majority Opinion would assign to the Executive Department of the government a constitutional infallibility which finds no justification in the law books, it refuses to recognize in the Legislative Department, another coordinate branch of the government, the authority which is conferred on it by the United States Constitution. In 1964, the United States Congress enacted a solemn law of far-reaching consequences. It was called the Foreign Assistance Act, 78 Stat. 1009, 22 U.S.C. sec. 2870, and it was passed because of events similar to the very one which is the subject of the present litigation, namely, the confiscation by foreign governments of American-owned property in violation of international law. The American Congress, in a piece of legislation comparable, in courageous utterance in the protection of American interests, to the Monroe Doctrine, declared: “Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to malee a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of that state in viola*181tion of the principles of international law.” (Emphasis supplied.)3
If United States Senators and Congressmen were viewing this very case before us, they could not have worded their legislation more precisely, to have it apply to what has been done by the Venezuelan Government in the matter here for review. The government of Venezuela, at a date subsequent to January 1, 1959, confiscated American-owned property in violation of international law. All this is properly pleaded by the plaintiffs and must be accepted as fact.
The Majority Opinion gives but scant attention to this vital Act of Congress. It merely says that it has considered the Foreign Assistance Act of October 7, 1964. But has it given it proper consideration? The Act distinctly states that “Notwithstanding any other provision of law,” and this, of course, would include all cases cited by the Majority, “no court in the United States SHALL DECLINE ON THE GROUND OF THE FEDERAL ACT OF STATE DOCTRINE TO MAKE A DETERMINATION ON THE MERITS GIVING EFFECT TO THE PRINCIPLES OF INTERNATIONAL law,” etc. (Emphasis supplied.) But that is exactly what this Court is doing! It is declining to make a determination in a case where a right is being asserted by a “foreign state based upon a confiscation or other taking after January 1, 1959, by an act of that state in violation of the principles of international law.”
There was reason for the Congress of the United States to enact the above-cited legislation. It had seen how foreign government after foreign government, even when receiving aid from the United States,4 seized *182American property without compensation, harassed American officials, interfered with legitimate transportation facilities of the United States and maltreated American citizens. Standing up to the neck in the flood of such affronts, insults and outrages, the American Congress finally struck back and said that any government which, in violation of international law, confiscated American-owned property, would not be allowed, in United States courts, to plead the sovereign immunity doctrine. That is the purpose, practically the language of the Foreign Assistance Act, which the Majority of this Court treats as if it had no more authority than a municipal ordinance.
Majority Cites Cases which are not Controlling
Instead of accepting its responsibility and stoutheartedly recognizing the legal issue in this case, the Majority attempts to bolster an archaic doctrine with cases which have no resemblance to the fact situation before us. It says, for instance, that the decision in the case of Ex Parte Peru, 318 U.S. 578, is “controlling.” It is not controlling. To begin with, the Peru case preceded the Tate Proclamation which announced the restricted sovereignty immunity rule, and, more importantly, it antedated the decision of the Supreme Court in the Republic of China case, which affirmed the restrictive sovereign doctrine. Moreover, the facts in Peru are wholly different from the facts in the case at bar. The Peruvian vessel “Ucayali” had been seized and was being detained at the time of the lawsuit. The ship in the instant case, the “Ciudad de Valencia,” although originally attached, was released two days later and the proceedings here are in personam and not in rem. The plaintiff is not seeking execution on a judg*183ment, it is not holding property belonging to the defendant, it is not embarrassing foreign relations between Venezuela and the United States. It is merely seeking an adjudication in an American court of its legal rights. Even if it obtains judgment, the question as to whether the judgment can be collected is something to be decided later, but certainly it has the legal and constitutional prerogative to have its rights determined in a court of law.
In the Peru case the petitioner procured the release of the vessel by filing a surety release bond in the sum of $60,000. There has been no such bond filed in this case. The whole ratio decidendi in the Peru case is the seizure and detention of a vessel. And I repeat, there is no detention here, there is no embarrassment to the United States, no impediment to Venezuela in carrying on its commercial enterprises with and in the United States. There is only a business transaction in which American citizens are seeking to litigate their claims in an American court, because they have, quite effectually, been denied an impartial forum in Venezuela.
Another reason why Peru is not controlling is that the vessel which was there involved, the “Ucayali,” was seized while the United States was at war. At the time of its arrest the vessel was “under engagement to transport materials for the United States Army.”
The Majority Opinion says that the case of F. W. Stone Engineering Co. v. Petroleos Mexicanos, 352 Pa. 12 is “likewise pertinent and controlling,” but since Stone Engineering is built on Peru and we have seen that Peru is no longer authority for the proposition urged by the defendant, a fortiori, Stone Engineering would not be authoritative in the case at bar. In addition, it is to be noted that in Stone Engineering our Court specifically stated that we accepted the Department of State’s suggestion of immunity because it was a “determination with respect to political matters con*184cerning foreign relations.” Exercising the most fertile imaginative creative faculty, it cannot be said that the litigation hére involved, that is, the ascertainment of damages due to a breach of a business contract, constitutes a determination of “political matters concerning foreign relations.”
The case of Rich v. Naviera Vacuba, S.A., 295 F. 2d 24, also cited by the Majority Opinion, is also not controlling or relevant because there, again, there was a detained vessel and, in addition, the Suggestion of Immunity filed by the State Department specifically declared: “This is to inform you that it has been determined that the release of this vessel would avoid further disturbance to our international relations in the premises.” No such precarious situation is presented or even hinted at in the case at bar, and it is particularly to be noted that in the Rich v. Naviera case the litigation was permitted to go to judgment in spite of the international relationship phase, the judgment entered in favor of the plaintiff amounting to $80,517.61. It was only when execution was attempted that the question of sovereign immunity arose. And I repeat that no execution or detention is involved in the instant case. The plaintiffs are seeking merely to have their case adjudicated as was done in Rich v. Naviera.
It is true, as the Majority’s opinion points out, that in the Rich v. Naviera case the petition for certiorari was denied on the authority of the Peru case under the emergency circumstances which existed there, but I again call attention to the fact that the Naviera case had to do with execution on a judgment, an actual seizure of the vessel involved, whereas, in the cáse at bar, I repeat, we do not have the question of attachment, seizure or execution.
The distinction between immunity from jurisdiction and immunity from execution is elementary. In Weilamann v. Chase Manhattan Bank, 21 Misc. 2d 1086, *185192 N.Y.S. 2d 469 (S. Ct. 1959), the Legal Adviser of the State Department said to the Attorney General: “the Department of State has heretofore recognized a distinction between ‘immunity from jurisdiction’ and ‘immunity from execution’.” Here, of course, we are concerned only with the question of “immunity from jurisdiction,” and I repeat there is no law which immunizes Venezuela, in a purely commercial transaction, from the jurisdiction of American courts. Moreover, and this should not be overlooked, the Naviera case was decided before the enactment of the Foreign Assistance Act which specifically declares, again I repeat: “Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the principles of international law, etc.” (Emphasis supplied.)
The Sovereign Immunity Rule is a Relic of the Law, overdue for interment in a Legal Museum
The doctrine of sovereign immunity rose from the fiction that kings were divinely anointed and, therefore, could do no wrong. Not only was this sovereign infallibility recognized in the realm over which the king reigned but it extended into other kingdoms because all the kings were in mutual conspiracy to prevent anybody from attacking their infallibility and subject them to such mundane annoyances as responsibility for debt. Kings were regarded not only untouchable but immortal, and the cry of “The King is dead, long live the King” was often heard in the land.
Thus, when anyone dared to suggest in court that a king, living or dead, was to answer to a citizen of the realm, the judges snapped a snuffer over the candle of the law.and smothered the flame of justice.
*186In time, monarchical government fell into desuetude and was succeeded by constitutional government but the fiction of sovereign immunity had carried on for so long and had always been approached with such reverential fear that even with the demise of its principal beneficiary, the aura of supreme authority still endured because one approaches even a dead lion with a.certain sense of respect and awe.
Thus, republics and other forms of succeeding governments held on to the myth and the legend of monarchical prerogatives, and, although it was known that the immunity was a fraud and a sham, the cry was still heard: “Sovereign Immunity is dead, long live Sovereign Immunity!”
America, however, was not so mesmerized as the rest of the world with the idea of governmental sanctification, and, accordingly, as early as 1797, the United States Congress recognized the injustice of the doctrine and modified it to the extent that when the United States brought a civil action against an individual, the individual defendant was allowed to set off debts due him from the government. There still persisted the notion, however, that somehow the government itself could not be made the object of a lawsuit. The government was still sacrosanct, the government was still the holy of holies, it still could do no wrong, but what was the government but the people and, if anyone should respond to injustice done the people, it should be the people themselves who are the government.
Accordingly, in 1857 Congress boldly took the first step toward making government responsible for its debts by creating the Court of Claims. In 1877 Congress went further and gave concurrent jurisdiction to. the United States courts to entertain claims against the government sounding in contract. Then, by a series of acts, notably the Federal Employees’ Compensation Act of 1916 (39 Stat. 742, 5 U.S.C. §751 et seq.), the Unit*187ed States made itself liable to pay workmen’s compensation to its employees. Acknowledgment of governmental responsibility was further expanded by the passage in 1920 of the Suits in Admiralty Act (41 Stat. 525, 46 U.S.C. §741 et seq.), followed in. 1925 by a similar act applying even to actual ships of war. And then finally Congress almost wholly dismantled the wall surrounding sovereign irresponsibility by passage of the Federal Tort Claims Act of 1946, 60 Stat. 843, 28 U.S.C. §1346 (b).
After thus opening the gates of justice to American claimants, our government decided to make itself liable to foreign claimants as well because one should not be less just outside his house than he is under his own roof. The United States embarked on the policy of not claiming immunity for its publicly-owned or publicly-operated merchant vessels. From all this, it must be quite obvious that the granting of sovereign immunity to foreign governments in the courts of the United States is wholly at variance with the policy of the United States in subjecting itself to suit in both contract and tort “and with its long established policy of not claiming immunity in foreign jurisdictions for its merchant vessels.” (Dept. of State Bulletin, volume 26, page 984, May 19, 1952). Our Department of State declared further: “The Department feels the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts.” (Emphasis supplied.)
The Majority Opinion in this case does "not answer the question which inevitably. springs up: Why. should this government allow to foreign governments a privi: lege which it does not enjoy itself? Why should Venezuela be permitted to come into our courts and claim an immunity from a contractual obligation when the *188United States does not exercise tbat privilege in its relationship with its own citizens or with foreigners?
Of course, no one questions, and last of all myself, that where national security is involved, governments which are friendly to us should be accorded every consideration even though application of such a rule means rewarding former enemies and present ingrates. For instance, Germany, which has on two occasions during the last half century been a mortal enemy, is now (the Western part) an ally in the Gold War. Great Britain which in the colonial days was tyrannical and oppressive to Americans is now a staunch ally. France, ever dear to American hearts because of Lafayette, Rochambeau and the Statue of Liberty, is, through her erratic president General DeGaulle, consorting with Communist China, an outspoken nemesis of America, and intent on our destruction.5 Japan, that stabbed America in the back at Pearl Harbor on the day “that will live in infamy,” today extends' the hand that had held the knife, to receive largess being poured out by the United States over all convexities of the globe.
Nations, like individuals, can be ungrateful, perfidious, treacherous and dishonest, and so Ave have *189Russia, which has been a gluttonous recipient of American assistance, now prodding the Viet Nam guerilla Communists to kill American soldiers. Although in World War II we rushed to the rescue of the Soviet Union, which might otherwise have been destroyed by its erstwhile Nazi ally, the Soviets have,' ever since; waged a cold war of ingratitude against the United States which has piled-on to the' shoulders of its citizens a crushing sack of taxes such as has never been carried before. Even so, America stands ready to deal with this rudely ungrateful nation, if only-we can join together in deeds of peace. .-And-.this applies also to France. Despite. DeGaulle’s debauchery of thankless-: hess,. America- still, aids. France, still maintains an army, on her soil , to save France from annihilation if Russia should ever decide to annihilate her.
:But, with-all'this,'the judiciary has nothing to do. The President Of the United. States speaks on foreign policy and his' utterances become' stare decisis for the American courts. But I cannot emphasize too strongly that there is nothing like this in the present'case. The President has not said, that Venezuela is . entitled, to-sovereign immunity and it is only when the President speaks, that the-Foreign Assistance Act-is suspended in its operation in a case such as the one before us. That Act declares that it. shall be inoperative “in any case with respect to which the President determines that application Of the act.of state doctrine'is required in' that particular case by the foreign policy interests of - the United States -and a suggestion to this effect is filed' on his behalf in that case with the-court.” ' (Emphasis supplied.
In 'this respect, the lower court, in the case'- at hand, well said: “In other words,'this court could be precluded -from entertaining a defense based on the act of state doctrine in this case only by a specific determination by the President.-that application of the doctrine *190is required in this particular case by the foreign policy interests of the United States, and with a suggestion to that effect filed in this court on behalf of the President. This being the policy enacted by Congress with respect to the act of state doctrine, we are not disposed to dismiss this action merely on the basis of a rather perfunctory suggestion by the Legal Adviser to the State Department, phrased in general terms, that defendant is immune from suit in the first place.” (Emphasis in original.)
And I believe that the lower court spoke wisely, as well as courageously, when it said: “Standing unexplained as it does in this record, the Legal Adviser’s statement that the decision to issue the suggestion of immunity was made in the light of legal issues appears to us to be totally inconsistent with any contention that the department’s action in recognizing and allowing the defense of sovereign immunity has anything to do with the implementation of foreign policy and the conduct of foreign relations. It appears to mean rather that the State Department, or one or more of its agencies, arrogates to itself the responsibility of holding a hearing, listening to oral arguments and considering written memoranda presented by counsel for both sides, and then made a determination of the Regal issues’ involved. This we regard as an exercise of the judicial, not the executive, function.”
The “legal issues” determination by the State Department is not only non-sustaining in view of what we have here stated, but it is at odds with what was declared by the illustrious Secretary of State Cordell Hull in a Mexican case with facts similar to those in the Venezuela case. The Mexican Government attempted to take American-owned property without compensation. In a note to the Mexican Ambassador on August 22, 1938, Secretary of State Hull said: “Under every rule of law and equity, no government is entitled *191to expropriate private property, for whatever purpose, without provision for prompt, adequate, and effective payment therefor. In addition, clauses appearing in the constitutions of almost all nations today, and in particular in the Constitutions of the American republics, embody the principle of just compensation. These, in themselves, are declaratory of the like principle in the law of nations.
“The universal acceptance of this rule of the law of nations, which, in truth, is merely a statement of common justice and fair-dealing, does not in the view of this Government admit of any divergence of opinion.” (3 Hackworth, Digest of Int’l Law 658-9).
There is no reason why what has happened in the Venezuela case should admit of any divergence of opinion from what was stated by Secretary of State Hull in the Mexican case. Secretary Hull’s positive declarations are embodied in the Restatement of Foreign Relations Law of the United States (Proposed Official Draft 1962) : “§190 . . . The taking by a state of property of an alien is wrongful under international law if . . . (b) it is not accompanied by payment of just compensation or, under the law and practice of the state in effect at the time of taking, there is not reasonable provision for the determination and payment of just compensation.”
It is in point also to note that the principle just enunciated has been re-acknowledged, as recently as 1962, by the General Assembly of the United Nations by a vote of 87 to 2 (France and South Africa) with twelve abstentions. (Paragraph 4, Resolution 1803 (XVII)).
With such unflinching unequivocal declarations by our Government, plus the statement of the United Nations just noted, it is a mystery to me how and why the Majority reached the conclusion that Venezuela, engaged in a commercial undertaking as business-like *192as a purchase of stock on the exchange or the buying of a consignment of bananas at ,a plantation, should be awarded an immunity from’juridical processes which every department' of, our government has now recognized as controlling in’ profit-inspired transactions. I cannot understand why the government of Venezuela is guaranteed an immunity which', the United States does not claim in any other country in the world. -It is impossible for me. to escape the conviction that this kind of a decision on the part of the Majority contriN utes to international irresponsibility and international disrespect for law.
Whether Venezuela’s good will can-be purchased by allowing her to defraud American citizens of over $100,-000,000 is not for the courts to decide. Certainly, so far as public, reports are concerned; we can take .judicial notice of the fact that American flags have been- publicly burned' in Venezuela and .riots and demonstrations have attacked the-integrity and good name of the United States.' It appears- in the litigation that the president of the plaintiff company has been threatened with bodily harm if he returns to Venezuela to protect his investments there. All-this certainly does, not add up to a demonstration-of friendliness to the United-States’ which, ipso facto, should make Venezuela an ally in the Cold War. Anyhow, I repeat, this is. not food for us to chew upon. ’Only the President of the United States can speak on; this subject and until, the President does so speak, it is- the bouhden obligation and ’unavoidable, duty of the American courts to adhere to-the law .as .written;..--And-that duty -iniperatively demands that we allow American citizens to have their.'rights adjudicatéd’ -in American courts-when-they are denied an .impartial forum in a foreign court.
This Court’s decision promotes the idea of a promise cuous, general allowance of absolute sovereign immunity which could undermine the whole structure of inter*193national trade which depends on prompt liquidation of monetary obligations. No one denies that Venezuela, under its power of eminent domain, could take the plaintiff’s property, but it is the most elementary, uncontestable, fundamental ABC of international law that it must make payment for that taking.
No one can question that law is founded on principles of morality, justice and intellectual integrity. We, of course, have the melancholy record of intolerable procedures of the past which were accepted and enforced in the courts. The medieval practices of trial by ordeal, trial by battle and star chamber proceedings can bring the blush of retrospective shame to our profession but no one can deny that the law has now emerged from the dark caverns of monarchical tyranny, scientific ignorance, vacuous superstitions and George Jeffreys despotism. Every decade in the last century has seen ancient incongruities of the law eliminated by statute, court decisions and by the most effective eraser of all, spontaneous, universal refusal to go on with a practice which is intrinsically abhorrent , to common sense and fair dealing. Justice Frankfurter stated this proposition well when he said that there has been a steady trend toward “subjection of governmental action to the moral judgment. A reflection of this steady shift in attitude toward the American sovereign’s immunity is found in such observations in unanimous opinions of this Court as ‘Public opinion as to the peculiar rights and preferences due to the sovereign has changed,’ . . . ‘There is no doubt an intermittent tendency on the part of governments to be a- little less grasping than they have been in the past.’ . . . . the present climate of opinion . . . has brought governmental immunity from suit into disfavor.’ ” (Republic of China, p. 359.)
He said further, and most salubriously so, that justice and public morality demand that those who seek *194to avoid payment of their debts must submit to the judicial process: “The substantive sweep of amenability to judicial process has likewise grown apace . . . The claims of dominant opinion rooted in sentiments of justice and public morality aré among the most powerful shaping-forces in lawmaking by courts. Legislation and adjudication are interacting influences in the development of law. A steady legislative trend, presumably manifesting a strong social policy properly makes demands on the judicial process.” (Republic of China, p. 360.)
The sovereign immunity doctrine, with the exception clearly spelled out in this opinion, is no longer a healthy manifestation of society. It is, in fact, an excrescence on the body of the law, it encourages irresponsibility to world order, it generates resentments and reprisals. Sovereign immunity is a stumbling block in the path of good neighborly relations between nations, it is a sour note in the symphony of international concord, it is a skeleton in the parliament of progress, it encourages government toward chicanery, deception and dishonesty. Sovereign immunity is a colossal effrontery, a brazen repudiation of international moral principles, it is a shameless fraud.
I believe we should affirm the action of the lower court which judiciously and courageously declined to approve of what the Venezuelean government has done, which, to speak bluntly, constitutes brigandage in violation of international law, condemned by every civilized government in the world. We have here, I cannot repeat too often or emphasize too much, the simplest business transaction and I cannot share the alarm evinced by the Majority Opinion that this litigation portends a crisis of state which conjures up even fear of a war with Venezuela. I cannot see in this dollar- and-cents commercial dealing an international extremity which should compel us to abandon primary princi*195pies of law, elementary concepts of justice, ordinary rules of logic and to turn our backs on our own citizens to enrich a nation which dispossessed American property owners, collected $380,000,000 from the pockets of American taxpayers, opposes allowing American investors a forum in which they may present their claims without apprehension or coercion and whose police condone the burning of the American Flag.
The Majority of this Court, in its final judgment, ignores the plain intendment of the decision of our highest court in the land, in the Republic of China case, it in effect defies a solemn act of Congress (78 Stat. 1009), 22 U.S.C. §2370, which is practically the law in the case, and it treats casually the official pronouncement of the State Department itself in Dept, of State Bulletin, volume 26, page 984, which has never been recalled, changed or modified. For these reasons, therefore, I must dissent to what the Majority has done and what, in the face of the dominant law, it has failed to do but should do.
The Venezuelan Sulphur -Corporation, listed in this ease as. a co-plaintiff, is owned by Chemical Natural Resources, so that all references to the plaintiffs will be in the singular number,
Dept. of State Bulletin, Vol. 26, p. 984.
No effect shall be given to acts of a foreign sovereign that are found to be in violation of international law. (Senate Report No. 1188, Cong. Record Vol. 110 (1964)).
It might be appropriate to point out, as the lower court did in its opinion, that from 1956 through 1965 the United States, has *182granted aid to the Republic of Venezuela in an aggregate amount of upwards of $380,000,000.
On November 23, 1965, the Philadelphia Inquirer, in an editorial which has been reprinted in Europe, said: “History’s pages, from ancient to modern times, are sprinkled with many instances in which a generous benefactor who helped a friend in dire trouble has subsequently been repaid only with scorn. But never before, in the annals of mankind, has the ingratitude been so enormous as in the case of Charles de. Gaulle’s massive contempt for the United States ... Of all recipients of U.S. aid, France stands at the very top in total amount received — $8,834,000,000 in. the period from July 1, 1945 to December 31, 1964. This sum, though astronomical, does not begin to tell the full story. It can be written only in the agony and blood of the thousands of Americans who have fought in France in two World Wars and have died in battle in order that the French might endure as a free people. Charles de Gaulle expresses his ‘thanks’ with a campaign of vicious abuse that knows no limits . .