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held to remain and to reside in the State itself, and not in any officer of the State. It is from the State that an ambassador is accredited, and it is with the State that the diplomatic intercourse is conducted."

Grounds Upon Which the Doctrine of Non-Suability is Rested. It is often the case in law that a doctrine, originally deduced from certain premises, comes to be defended upon wholly different grounds. Thus we find the doctrine of the non-suability of the sovereign State supported by arguments, practical or dogmatic in character, which have little reference to its actual historical origin. In the early American case of Briggs v. Lightboats,15 Justice Gray made an extended inquiry into the history of the doctrine of the non-suability of the sovereign as developed in English and American law, but supplemented its historical basis by the following dictum as to its practical utility: "It would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on his government in war and peace, and the money in his treasury."

In the case of United States v. Lee,16 which has been earlier referred to, Justice Miller declared of this doctrine: "It seems most probable that it has been adopted in our courts as a part of the general doctrine of publicists that the supreme power in every State, wherever it may reside, shall not be compelled, by process of courts of its own creation, to defend itself in those courts."

In a comparatively recent case 17 in the same court we

15 11 Allen 157.

16 106 U. S. 196.

" Kawananakoa v. Polyblank, 205 U. S. 349.

find Justice Holmes saying: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." 18

This proposition that a sovereign State cannot logically be conceived of as itself the "subject" of legal rights and duties, that is, as the entity in which they inhere, it will be remembered, was discussed in Chapter VIII. It will also be remembered that this is a proposition that is relevant only in national or municipal jurisprudence. In the field of International Law it is pre-eminently the States that are envisaged as the subjects as well as the objects of such rights and obligations as international jurisprudence is able to create or impose.

Suability of Sovereigns or of Sovereign States in Foreign Courts. Thus far we have been speaking of the nonsuability of sovereign bodies-politic without their consent in their own courts. As a matter of universally observed international comity, municipal courts do not assert jurisdiction over foreign States or their chief executives.

A leading case as to sovereign rulers is Da Haber v. Queen of Portugal,19 decided in 1851, in which the court, by Lord Chief Justice Campbell, said: "It is quite certain, upon general principles, and upon the authority of the case of Duke of Brunswick v. King of Hanover, recently decided in the House of Lords, that an action cannot be maintained in any English court against a foreign potentate, for anything done or omitted to be done by him in his public capacity as representative of the nation

18 In this case the court held that the Territory of Hawaii partook sufficiently of the nature of a sovereign State, to render it immune from suit without its consent. It would seem, however, that a better ground for this holding would have been that the Territory, as to the matter in dispute, stood in the stead of the sovereign United States. 19 17 Q. B. 196.

of which he is the head; and that no English court has jurisdiction to entertain any complaints against him in that capacity. Redress for such complaints affecting a British subject is only to be obtained by the laws and tribunals of the country which the sovereign rules, or by the representations, remonstrances or acts of the British Government. To cite a foreign potentate in a municipal court, for any complaint against him in his foreign capacity, is contrary to the law of nations, and an insult which he is entitled to resent."

It will be observed that, in the quoted statement, the court refers to suits based upon acts of a foreign sovereign in his public or official character. The rule, is, however, the same as to proceedings based upon the sovereign's private acts, and also as to proceedings against his property.

In the Parlement Belge,2o decided in 1878, the British Court of Appeals declined jurisdiction in an action in rem against a vessel which, it appeared, though operated, to an extent at least, commercially, was the property of the King of Belgium. The court said: "It is admitted that neither the sovereign of Great Britain nor any friendly sovereign can be adversely personally impleaded in any court of this country. It is admitted that no armed ship of war of the sovereign of Great Britain, or of a foreign sovereign can be seized by any process whatever, exercised for any purpose by any court of this country. Having carefully considered the case of the Charkieh,21

"L. R. 5 Prov. Div. 197.

21

L. R. 4 Adm. & Eccl. 59. This case was an action against the ship Charkieh for damages arising out of a collision occurring in the river Thames. In bar it was pleaded that the ship was the property of Ismail Pasha, Khedive of Egypt. The court held that Egypt, at that time, had not the sovereign or international status that would entitle its Khedive to the immunity which was claimed. In fact the court had received from the British Foreign Office the statement "that the Khedive has not been and is not now recognized by Her Majesty as reigning sovereign of the State of Egypt."

we are of opinion that the proposition deduced from the earlier cases in an earlier part of this judgment is the correct exposition of the law of nations, viz., that as a consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign State to respect the independence of every other sovereign State, each and every one declines to exercise by means of any of its courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other State, or over the public property of any State which is destined to its public use, or over the property of any ambassador, though such sovereign ambassador or property be within its territory, and therefore, but for such common agreement, subject to its jurisdiction."

This same doctrine was recognized by the United States Supreme Court in the early case of The Exchange,22 and has never since been questioned. Another case in which the whole doctrine was exhaustively discussed was that of Briggs v. Lightboats,23 earlier referred to.

Still another carefully considered American case is that of Mason v. Intercolonial Railway of Canada,24 decided in 1908. A fairly modern English case is that of Mighell v. Sultan of Johore,25 decided in 1893.

It has been seen that in the Parlement Belge the court refused to entertain proceedings in rem against a vessel owned by a foreign sovereign but devoted in part to ordinary commercial purposes. As to just how far the immunity from attachment or other judicial process will be applied in the case of property, especially ships, owned by a State or its sovereign, and wholly devoted to commercial

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purposes, the British and American courts are not in full agreement, nor can either of them be said to have established a hard and fast doctrine.

In The Maipo 26 it was held that a naval transport, owned by a foreign government and in its possession, through a naval captain and crew, although chartered to a private individual for commercial purposes, was not subject to seizure under a process of an admiralty court of the United States. The Parlement Belge was the chief authority relied upon in determining the general principle of public law. In a second case dealing with the same vessel,27 in which the action was advanced by a stranger and based upon a tort, Justice Hough said: "Why was a war vessel exempt from seizure? Not because it was a war vessel, but because it was a part of the exercise or manifestation of sovereign power. Why is any other vessel exempt? Why may any other piece of property be exempt? For the same reason, just as the sovereign himself is exempt. . . . If the Republic of Chile considers it a governmental function to go into the carrying trade, as would appear to be the case here, that is the business of the Republic of Chile; and if we do not approve of it, if we do not like it, if we do not wish any longer to accord that respect to the property so engaged, which has hitherto been accorded to government property, then we must say so through diplomatic channels, and not through the judiciary."

This general subject has been recently examined in an able article by Mr. Charles H. Weston,28 who summarizes as follows the results reached by him from an examination of the cases:

20

"In spite of some early criticism the law today gives

252 Fed. Rep. 627.

"The Maipo, 259 Fed. Rep. 367.

"Actions against the Property of Sovereigns," Harvard Law Review, vol. XXXII (1918-1818), p. 266.

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