position to it. This is my present opinion; but I will give my brother Taddy leave to move the court upon the subject.'

REPUBLIC OF HONDURAS v. SOTO.

(Court of Appeals of New York, 1889. 112 N. Y. 310, 19 N. E. 845, 2 L. R. A. 642, 8 Am. St. Rep. 744.)

RUGER, C. J. Section 3268 of the Code of Civil Procedure provides that a defendant, in an action brought in a court of record, may require security for costs, in cases, among others, where the plaintiff was, when the action was commenced, either "a person residing without the state," or "a foreign corporation." The plaintiff claims to be a foreign independent state.

It is urged by the plaintiff that it is neither a person nor a foreign corporation, within the meaning of the Code. It is not disputed but that the plaintiff is an independent government, recognized as such by the United States, and capable of entering into contracts and acquiring property, as well as competent, through the rule of comity, of bringing and maintaining actions in the courts of this country; but it is claimed that it does not come within the description of legal entities authorized to require security for costs. That it is within the spirit of the enactment, we think cannot be disputed, and we are also of the opinion that it is within the letter as well.

Vattel defines "nations or states to be bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint effort of their combined strength. Such a society has her affairs and her interests. She deliberates and takes resolutions in common, thus becoming a moral person, who possesses an understanding and a will peculiar to himself, and is susceptible of obligations and rights." Law of Nations, 1; Wheaton's International Law, c. 2, §§ 1, 2; Bouvier's Institutes, title "Nation."

That such a being constitutes a legal entity, capable of acquiring and enjoying property and protecting itself from injuries thereto in the courts of foreign countries, has long been recognized and established in the tribunals of civilized nations. Republic of Mexico v. De Arangoiz, 12 N. Y. Super. Ct. 636; Hullet v. King of Spain, 1 Dow. & C. 169; Cherokee Nation v. Georgia, 5 Pet. 52, 8 L. Ed. 25.

2 On leave given the court "thought that the opinion of the Chief Justice which he gave at the trial was correet. But they decided on another ground, viz. the incorrectness of some material innuendoes, which was not adverted to at nisi prius, and therefore made the rule absolute for a new trial." 2 Car. & P. 229.

For the characteristics of nation, tribe, or band, see Montoya v. United States, 180 U. S. 261, 21 Sup. Ct. 358, 45 L. Ed. 521 (1901), post, p. 538.

For application of international law to backward nations or states, see Sir William Scott's judgment in The Helena, 4 C. Rob. 4 (1801).

The facts of the case and part of the opinion are omitted.

There can be no doubt but that under title 2, chapter 10, part 3, of the Revised Statutes, providing for security for costs in an action brought by any plaintiff, not residing within the jurisdiction of the court, that foreign states and nations were required to give such security, and we do not think that the provisions of the Code were intended to change the law in that respect.

Section 3268 of the Code is stated to be a re-enactment of the previous statute, and it cannot, we think, have been intended thereby to take away the right which resident defendants had to require security for costs. No reason is seen for such a change, and we do not think any was intended to be made. The word "person" was, we think, used in its enlarged sense, as comprising all legal entities except foreign corporations, which were authorized to bring actions in this state. In that sense it embraces moral persons having legal rights, capable of entering into contracts and incurring obligations, as well as natural persons. The statute must be construed with reference to the objects it had in view, the evils intended to be remedied and the benefits expected to be derived from it; and, as thus construed, we can see no reason why the plaintiff is not included within the description of persons intended to be subjected to its obligations. *

THE IONIAN SHIPS.

(High Court of Admiralty, 1855. 2 Spinks, 212.)

Some ships under the flag of the Ionian states were captured in the Black Sea by some of her Majesty's cruisers, and brought in for adjudication, on the ground that the Ionians being British subjects they were illegally trading with the enemy. On the first case, The Leucade, coming on for hearing, the Queen's Advocate submitted that it was a case for further proof; but the Court was of opinion that it would be useless to order further proof until the preliminary question was decided, whether the inhabitants of the Ionian Islands were to be considered as British subjects or not. That question was, therefore, elaborately argued.

Dr. LUSHINGTON. It must be distinctly understood that all I am about to say on the present occasion applies only to the general question, and not to the particular circumstances of any individual

Now, what are the facts necessary to constitute the propositions for the consideration of the Court. They are few indeed. The vessel proceeded against is an Ionian vessel, under the Ionian flag, destined, for the purpose of the present inquiry at least, to Taganrog, a Russian port. The captors say that such a voyage by an Ionian ship subjects. her to condemnation. The claimants say that neither by the Law of Nations, nor any other law, are they liable to condemnation; that the

Russian port of Taganrog was not blockaded; that they did not carry contraband; that the expedition in which they were engaged was lawful, and that they are entitled to restitution. Such is merely a general statement of the averment of each party. I must now endeavour to set forth, as clearly as I can, the reasons and principles on which the prayers for condemnation and restitution are founded.

The counsel for the captors allege that all Ionian vessels are to be considered as British vessels; that as British vessels are prohibited from trading with Russia during the war, so for the same reason are Ionian vessels; in other words, the British and Ionian vessels are to be placed in the same category; that as regards a power hostile to Great Britain, the Ionian islanders stand in the same position as British subjects.

If this proposition be true, it necessarily follows, as a corollary from it, that all trade with the enemy of Great Britain not allowed to British subjects is prohibited to the inhabitants of the Ionian islands. There is no doubt that a British vessel could not trade with this port of Taganrog; therefore, if British and Ionian vessels are in eadem conditione, this vessel could not lawfully prosecute her enterprise, and the cargo. must be condemned.

The claimants deny all these propositions; they say they were not British subjects, they are not at war with Russia, and they have a right to carry on with Russia any trade that the subjects of a neutral nation could lawfully be engaged in.

*

But the question I have to decide assumes this shape, not whether Great Britain has power to declare the Ionian states in hostility with Russia, but whether, Great Britain being at war with Russia, it follows, as an inevitable consequence, that the Ionian states are placed at war with Russia also.

Therefore, and for the reasons I have now stated, I have only to consider the last proposition, whether Great Britain, being at war with Russia, the Ionian states are, ex necessitate, at war also, exactly in the same way as Jersey, Guernsey, Jamaica and Canada would be placed in hostility by a declaration of war against Great Britain by any other power. This view of the case opens a very wide question; for if I should hold that the declaration of war by Great Britain against Russia would at once place the Ionian Islands in a state of war with Russia, then it follows, as it appears to me, as an inevitable consequence, that if war be declared by Great Britain against China, against the United States of America, against any other power, the subjects of the Ionian states must be constituted, ipso facto, enemies of such nation, for it has not been and cannot be contended that the empire of Russia stands in any peculiar relation, so as to make war with her an exception.

The political history of these islands was traced from an early period with great care by the counsel on both sides; it will not, in my view of the case, be necessary for me to recapitulate it. I proceed upon the

assumption which I believe to be accurate, for it matters not if it be not precisely accurate in all its particulars, but to this effect that all these islands were conquered by Great Britain during the war ending 1815. I proceed on that assumption; whether Corfu surrendered at that time, or some other, I need not inquire. I proceed on the assumption that Great Britain dealt with them as conquered. Had they continued after the peace in the same state, they would have been a part of the dominions of Great Britain, governed as other conquered territories were governed, by the Crown and acts of Parliament.

Great Britain, however, did not retain these islands in the ordinary course of conquered territories, but she exercised a right indisputably belonging to her of making, in conjunction with other powers, a new and different status for these islands. Great Britain ceded her original rights, and merged them in the new settlement. I am of opinion that no right remained in Great Britain after the treaty to which I am about to refer, except the rights conferred by that treaty; that, from the nature of that transaction and from the terms of the treaty itself, Great Britain can at this period exercise no rights whatever that are not to be found within the four corners of that treaty; that there does not remain a scintilla of the original right of conquest; that, for reasons with which I have no concern, Great Britain laid at the feet of the contracting parties, as she had a right to do, the power and authority she had previously acquired. Henceforward the treaty is the sole guide; from this document must be derived all the rights of the contracting parties, and all the rights and the obligations of the Ionian states.

The treaty of Paris of the 5th of November, 1815, was made between Great Britain, Austria, Russia, and Prussia. I apprehend it is a mere truism to say it was equally binding upon all and each of them.

The first article declares that these islands shall form a free and independent state. My province is simply that of construction-of ascertaining to the best of my ability what the contracting powers intended by the contract into which they entered, and that with reference in the first instance to the words of the contract itself; but I must look to the whole of the instrument and not to a part. Terms. however strong and clear in themselves, whatever meaning may be attributed-necessarily attributed-to them, standing alone, may be modified by other parts of the same instrument. The construction, therefore, I put on the first article is that the Ionian islands shall form a single free and independent state, according to the plain meaning of those terms, subject to and liable to be controlled by the rest of the treaty; the whole treaty creates one obligation.

The second article is one of great importance-the declaration that this state shall be placed under the immediate and exclusive protection of the King of Great Britain. I am strongly inclined to think that the necessary and inevitable consequence of such a condition is, that the

King of Great Britain has the right of making war and peace; indeed, such a power is inseparable from protection; for how could the duty of protection be fulfilled without such a right? and how could the Ionian islands be secured from aggression but by the exercise of that power? and how could their tranquillity be secured afterwards, save by the power to conclude peace, with all its concomitants.

But it is another and wholly different question whether, in consequence of this protectorate right, the Ionian states become, ipso facto, the enemies of all or any power or powers with which Great Britain may happen to be at war; and it is also another and different question whether, if Great Britain were, on account of Ionian grievances alone, to adopt measures for their protection against any other state, the kingdom of Great Britain would necessarily be at war with such state.

*

Some of the secondary propositions of this treaty I may omit to notice with much convenience.

By the third article the united Ionian states were, with the approbation of Great Britain, to regulate their internal organization.

By the fourth there is to be a legislative assembly and a new constitutional charter, also to be ratified by the King of Great Britain. Until such charter was ratified no alteration was to be made in the existing constitution save by the King in Council. Until that period, therefore, as to internal concerns, these islands remained nearly, though not altogether, in the position of conquered islands belonging to the crown of Great Britain.

The fifth article declares that the Britannic Majesty shall have a right to occupy the fortresses of the islands, to maintain garrisons, and have the control of the Ionian forces.

By the sixth, a particular convention is to regulate the maintenance of the forces, payment of the garrisons, and the number of men in time of peace.

This is a remarkable limitation, because it evidently leads to the conclusion that in time of war, non constat what war, Great Britain was not to be subject to any such restriction.

The seventh article is one deserving great attention. The trading flag of the Ionian islands was acknowledged by all the contracting parties as the flag of a free and independent state. The effect of this provision, I apprehend, is, if war existed between Russia and Austria, Great Britain having no part in it, the Ionian flag would be respected as the flag of a neutral power. In one respect, and one only, therefore, the neutral character would clearly belong to the subjects of these islands. The description of the flag to be carried I need not enlarge upon. must also observe that the whole diplomatic power is lodged in Great Britain by virtue of this treaty.

The constitutional charter does not, in my opinion, essentially influence any view I may take of the question on which I am unfortunate