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SOVEREIGNS AS DEFENDANTS

A recent decision handed down by the Supreme Judicial Court of Massachusetts, and reported in its last published report,1 involves the broad consideration of the status of sovereigns as defendants both from the point of view of international and of municipal law. The decision concretely confirms the opinion that no matter from what point of view the theory of international law may be said to proceed, its doctrines are based on as firm principles of sound reasoning and justice as are the doctrines of the ordinary municipal law. And this notwithstanding the popular impression prevalent, especially among laymen, that international comity is the dominant principle of international law. As a matter of fact, international comity is simply a subservient and related part of the net-work of principles which make up the law of nations, principles based exclusively upon sound reasoning and justice. In the decision referred to, the plaintiff, a citizen of the United States, brought suit in the Massachusetts courts against the Intercolonial Railway of Canada by an ordinary trustee writ naming certain residents of Massachusetts as trustees. Thereupon counsel appeared as amicus curice and suggested that the action be dismissed on the ground that the property known as the Intercolonial Railway was the property of the British Crown and a public work and was operated and controlled by His Britannic Majesty in the right of his government of Canada. Upon this suggestion the court dismissed the action.

In the ordinary case of a suit by a citizen of one State in the United States against a resident of another State the courts in the former State assume jurisdiction over the defendant providing property belonging to the defendant may be found within its borders. The same principle is true if the suit is against a citizen of a foreign country. But when, instead of being a citizen of a foreign govern

1 Mason r. Intercolonial Railway of Canada, 197 Mass. 349 (1908); see this JOURNAL, 3:224.

ment, the defendant is the foreign government itself, we pass beyond the confines of the municipal law and into the realm of international law. It is a main purpose of the writer to show that when such foreign government conducts an undertaking commercial in its character and not in its strict capacity as a sovereign government the law of nations should permit suit to be brought against such government providing property belonging to it may be found within the jurisdiction of the home courts. The general subject of the immunity of the sovereign power from jurisdiction of its own and foreign courts has been discussed in various decisions,2 but the narrower question of immunity when engaged in undertakings private or commercial in character has never been specifically discussed, except by way of dicta, so far as the writer knows, unless possibly in the case referred to above determined by the Massachusetts court,3 where the bare decision on this point is given without discussion, and certain other authorities to be hereinafter considered.

In consequence of the absolute independence of every sovereign authority, and of international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state, the courts decline to exercise 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 be used as such, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and, therefore, but for the common agreement, subject to its jurisdiction.*

The sovereign being bound not to degrade the dignity of his nation by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated for, are reserved by implication and will be extended to him. It

2 Briggs v. Light-boats, 11 Allen (Mass.), 157; The Constitution, L. R., 4 P. D., 39; Schooner Exchange v. M'Faddon, 7 Cranch, 116; Wadsworth v. Queen of Spain, 17 Q. B., 171.

3 Mason v. Intercolonial Ry., supra.

The Parlement Belge, L. R., 5 Prob. Div., 197 (1880); De Haber v. Queen of Portugal, 17 Q. B., 196.

will here be contended that to the general rule that a sovereign cannot be sued in a foreign country there are two exceptions, first, where the sovereign or state goes into the municipal courts of another country for the purpose of obtaining a remedy, then by way of defence to that proceeding, by way of counterclaim if necessary, to the extent of defeating that claim, the person sued may file a crossbill or take other proceedings against that sovereign or state for the purpose of enabling complete justice to be done between them. The other exception is the case in which a foreign sovereign may be named as defendant for the purpose of giving him notice of the claim which the plaintiff makes to funds in the hands of a third person or trustee over whom the court has jurisdiction in which the cause of action arises from a transaction by the sovereign private or commercial in its character.

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This latter exception is expressly sustained by Lawrence, J., in Mighell v. Sultan of Jahore, and confirmed by James, L. J., in Strousberg v. Republic of Costa Rica, supra. That the forum rei site is not excluded by the fact that the ownership is in a foreign sovereign or ambassador is recognized in the law of England. The decisions on which the English and other courts have based the doctrine of extraterritoriality, namely, the independence of a foreign sovereign and the courtesy which induces courts to refrain from anything that would prejudice the dignity and interfere with the convenience of a foreign sovereign or his representatives, should not apply where the existence of real property gives a means of execution that does not involve any personal indignity. By parity of reasoning it has been said in the courts of England and America that proceedings in rem, such as the attachment of a ship belonging to a foreign sovereign and engaged in trading, for ships of war being for the public service cannot be seized, will give jurisdiction over that foreign state or foreign sovereign. A trading by a foreign sovereign will cause the exemption accorded to him in his public capacity to cease. In the case of the United States v. Wilder, the

5 James, L. J., in Strousberg v. Republic of Costa Rica, 14 Law Times, 199. 61 Q. B., 149.

7 Bar: International Law, p. 614.

83 Sumner (U. S.), 308.

question was whether property belonging to the government was liable to make contribution in a case of general average and this claim was sought to be enforced by lien. Mr. Justice Story was of the opinion that the fact that a lien was the only method of enforcing liability was the best possible reason for sustaining it. Among other things, he considered that

the distinction has often been taken by writers on public law as to the exemption of certain things from all private claims, as, for example, things devoted to sacred, religious and public purposes, things extra commercium and quorom non est commercium. That distinction might well apply to property like public ships of war held by the sovereign jure coronae, and not be applicable to the common property of the sovereign of a commercial character or engaged in the common business of commerce.

The public property of the sovereign is distinguished from other property belonging to state establishments in the case of the Schooner Exchange v. M'Faddon." Marshall, C. J., says

there is a manifest distinction between the private property of the person who happens to be a prince, and that which supports a sovereign prince and maintains the independence of a nation. A prince by acquiring property in a foreign country assumes the character of a private individual.

In the Parlement Belge,10 it was held that suit in rem could not be maintained in England against property belonging to the Belgian government on account of a collision between a steamer owned by the Belgian government and an English-owned steamer; "in the present case the ship has been mainly used for the purpose of carrying mails and only subserviently to that main object for the purpose of trade," showing, at least, a clear indication that if the vessel had been used mainly for the purpose of carrying passengers for hire, suit could have been maintained, for then the Belgian government would have been engaged in conducting a commercial undertaking for profit.

In the case of the Charkieh,11 where it was sought to enforce a damage lien by proceedings in rem, namely, against a ship belonging

97 Cranch (U. S.), 116.

10 Law Reports, Court of Appeals, 5 Probate Division, 197 (1878).

11 L. R., 4 Ad. & Ec., 59.

to the Khedive of Egypt, Sir R. Philimore held that the Khedive was not entitled to the privileges of a sovereign. But although this ground was sufficient to dispose of the case, he delivered an elaborate judgment to the effect that where, by proceedings in rem against property of a foreign sovereign, the indignity of personal service of the summons or execution can be avoided, no ground for a plea of extraterritoriality exists. The object of international law, in this as in other matters, is not to work an injustice nor to prevent enforcement of a just claim, but to substitute negotiations, though they may be dilatory and the issue distant and uncertain, for the ordinary use of courts of justice in cases where such use would not lessen the dignity or embarrass the functions of the representatives of a foreign state; if the case takes a shape which avoids inconvenience, the object both of international law and of ordinary law is attained. Of the former, by respecting the personal dignity and convenience of the sovereign, and of the latter, by the administration of justice.

It seems to be disputed how far foreign sovereigns and foreign states are entitled to appear as defendants. It seems a sound view to distinguish the case where some obligation of the sovereign or the state is called in question, which depends upon an act that is competent only to the chief magistrate of the state or upon formal law, from the case where the obligation rests upon a legal relation in which any private person may be engaged and which can not be referred to in public law. In the former case, we may reject the competency of foreign courts; 12 in the latter, only allow their jurisdiction to be exercised under the same conditions as those upon which it would be founded against any private individual,13 without prejudice to the claims of extraterritoriality. For instance, a creditor cannot sue a foreign government on account of some loan contracted by it and resting upon a financial resolution or act; whereas, a merchant who has supplied goods to a foreign government for commercial purposes should under certain circumstances be permitted to sue in the forum contractus. If any foreign government desires to possess property in this country like a private person, it should

12 Story, sec. 542A.

13 Vattel, vol. 2, secs. 213, 214; Gand, 12.

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