*

ors, were to be sued in a court of this country, and took no kind of notice of the proceeding; it would be the duty of the Court to recognise. his position, and to say at once that the person cited was an independent foreign sovereign over whom it had no jurisdiction. Therefore it is not right to say that such a sovereign must come forward and assert his right. I do not think that he need. I think the Court itself would be bound to take notice of the fact that it had no jurisdiction. * The passage cited from Vattel by Lopes, L. J., is emphatic on this very point, and shews that the time at which the immunity is to be waived must be when an action is brought against the foreign sovereign, and when it is brought to the attention of the Court by reason of its judicial knowledge or from other information that the person sued is a foreign sovereign. I should put it thus: the foreign sovereign is entitled to immunity from civil proceedings in the Courts of any other country, unless upon being sued he actively elects to waive his privilege and to submit to the jurisdiction. Here the defendant has not done that, but just the contrary.

* * * 8

8 In Vavasseur v. Krupp, L. R. 9 Ch. Div. 351 (1878), it was held, according to the headnote of the case, that:

"The court has no jurisdiction to prevent a foreign sovereign [in this case the Mikado of Japan] from removing his property in this country.

"A foreign sovereign who, for the purpose of obtaining his property, submits to be made a defendant in an action, does not thereby lose his rights. "There is a right of property in an article made in infringement of a patent although the court would order the article to be destroyed.

"A foreign sovereign bought in Germany shells made there, but said to be infringements of an English patent. They were brought to this country in order to be put on board a ship of war belonging to the foreign sovereign, and the patentee obtained an injunction against the agents of the foreign sovereign and the persons in whose custody the shells were, restraining them from removing the shells. The foreign sovereign then applied to be and was made a defendant to the suit. An order was then made by the Master of the Rolls, and affirmed on appeal, that notwithstanding the injunction he should be at liberty to remove the shells."

See, also, Doss v. Secretary of State for India, L. R. 19 Eq. 509 (1875). In the comparatively recent case of So. African Rep. v. La Compagnie Franco-Belge, etc., L. R. 1 Ch. 190 (1897), a foreign sovereign brought suit in England to restrain defendants from using a fund in their hands in certain ways. Defendants set up a claim for damages, upon which it was held, that while a sovereign suing in England submits to the jurisdiction for the purposes of allowing discovery in aid of the defendant in his action he does not submit to what is in its real nature a cross action. Another claim arising from another and distinct matter may not be set up.

The recent cases are all in accord with the principal cases and those cited in the notes.

The rule may be thus expressed, "once a sovereign, always a sovereign," at least for anything done while and in the capacity of a sovereign. See Hatch v. Baez, 7 Hun, 596 (1876); Duke of Brunswick v. King of Hanover, 2 H. L. Cas. 1 (1848).

In Nathan v. Virginia, 1 Dall. (Pa.) 77, note, 1 L. Ed. 44, note (1781), it was held by the court of common pleas of Philadelphia county that property of a sister state-in this case the commonwealth of Virginia-was not liable to attachment in Pennsylvania, on the theory that Virginia, being a free, sovereign, and independent state, was not suable according to the law of nations.

In Beers v. Arkansas, 20 How. 527, 529, 15 L. Ed. 991 (1857), Chief Justice Taney, speaking for the court, said:

"It is an established principle of jurisprudence in all civilized nations that

II. DIPLOMATIC AGENTS

The CASE OF ANDREW ARTEMONOWITZ MATTUEOF, Ambassador of Muscovy.

(Queen's Bench, 8 Queen Anne, 1710. 10 Mod. 4.)

The question was, whether an ambassador, could by law be arrested for debt.

Sir JAMES MOUNTAGUE, Attorney General. He cannot. If the privileges of an ambassador may by law be broken in upon and invaded for the preservation of the property of a private subject, princes will be cautious of sending ambassadors to us; ours must expect the like treatment; and few will be prevailed with to take that character upon them. Should an ambassador be liable to the restraints of the law of the land to which he goes, how easy would it be, upon an emergency, to take off his attendance upon his master's business? Does the law of England privilege the body of a member of Parliament, and of a soldier, and shall it not that of an ambassador? The person of an ambassador has ever been held sacred and inviolable by the law of nations. The goods of an ambassador are not liable to distress, a fortiori, not his person. An ambassador must be intreated, and upon refusal sent back to his master. If an ambassador commit a crime. of a transcendant nature, the King a quo, non ad quem, must punish him. Lord Coke says, legatos violari contra jus gentium; nor does he add, as certainly he would, had he thought so, that though this be so in the civil law, it is not so in ours. An ambassador does by fiction of law represent the person of his master; thus Coke, upon the statute 25 Edw. 3, c. 2, affirms, that it is high treason at the common law to kill an ambassador. Now certainly nobody will say the Czar himself might have been arrested. The same fiction of law that makes

the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it."

In Nichols v. United States, 7 Wall. 122, 126, 19 L. Ed. 125 (1868), Mr. Justice Davis, speaking for the court, said: "The immunity of the United States from suit is one of the main elements to be considered in determining the merits of this controversy. Every government has an inherent right to protect itself against suits, and if, in the liberality of legislation, they are permitted, it is only on such terms and conditions as are prescribed by statute. The principle is fundamental, applies to every sovereign power, and but for the protection which it affords, the government would be unable to perform the various duties for which it was created. It would be impossible for it to collect revenue for its support, without infinite embarrassments and delays, if it was subject to civil processes the same as a private person."

him represent the person of his master, makes him extraparochial, and quasi, in the dominions of his master. The ill treatment of ambassadors is a thing of dangerous consequence, for it may involve the nation in a war, and it would be very inconvenient that this should be in the power of any private person whatsoever.

Contra, it was said, if this be so, a subject may be left without remedy for the recovery of his debt, which would be a defect in law. Justice ought always to be reciprocal, but an ambassador may arrest, ergo, etc. It is a maxim in law that the royal prerogative does no wrong, and shall the prerogative of an ambassador surmount that of the Crown? Such a law as this would be a nullity, because contrary to Magna Charta, cap. 29, "nulli vendemus, nulli negabimus, aut differemus justitiam, vel rectum." An ambassador by his contract renounces his privilege as far as to subject himself to the laws in force in that country where the contract was made."

The persons who were concerned in this arrest were examined before the Privy Council, and seventeen were committed to prison; most of whom were prosecuted by information in the Court of Queen's Bench at the suit of the Attorney General, and at their trial before Lord Chief Justice Holt, were convicted of the facts by the jury; reserving the question of law, how far those facts were criminal, to be afterwards argued before the Judges; which question was never determined. 1 Bl. Com. 255. Boyer's Annals of Queen Anne. But to satisfy the clamours of the foreign ministers, who made it a common cause, as well as to appease the Czar, all the proceedings, etc., against the said ambassador are, by 7 Anne, c. 12, declared void, and it is enacted, "that all writs and processes that shall at any time afterwards be sued forth or prosecuted, whereby the person of any ambassador or other public minister of any foreign prince or State, authorised and received as such by Her Majesty, or the domestic or domestic servant of any such ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels may be distrained, seized, or attached, shall be deemed null and void; but it is provided, that no merchant or other trader whatsoever, within the Statutes of Bankrupts, who shall put himself into the service of such ambassador, etc., shall have any manner of benefit by this act; and also that no person shall be proceeded against for having arrested the servant of any ambassador, etc., unless the name of such servant be first registered in the Secretary of State's office; and transmitted by such Secretary to the Sheriff of London, etc., who shall hang up the same in some public place in their offices, whereto all persons may resort and take copies thereof, without fee or reward."

For judicial decisions on this statute see Barbuit's Case, Cases T. T. 281; Triquet v. Bath, 3 Burr. 1748: Seacomb v. Bowlney, 1 Wils. 20; Heathfield v. Chilton, 4 Burr. 2015; Poitier v. Croza, 1 Black. Rep. 48; Wedmore v. Alvares, Stra. 797; Ld. Ray. 1594; Carolino's Case, 1 Wils. 78; Holmes v. Gordon, Annally's Rep. 2; Masters v. Manby, 1 Burr. 401; Lockwood v. Coysgarne, 3 Burr. 1676; Hopkins v. De Roebuck, 3 Term Rep. 79.

HEATHFIELD v. CHILTON.

(Court of King's Bench, 1767. 4 Burr. 2015.)

On showing cause why the defendant should not be discharged out of the custody of the marshall (upon 7 Anne, c. 12) as a domestic servant to Paul Pierre Russell, minister from the Prince Bishop of Liege he swore himself to be bona fide English secretary to him; and to have been bona fide hired by him as such; and to have bona fide received wages as they became due, at the rate of £30 per annum. Both the minister himself and the relation of this man to him were objected to.

But Chilton's own affidavit was positive, as to the service, and that it was real and not colorable; and it was confirmed by a Mr. Chamberlayne, who called himself Secretary. He also swore that he was not an object of the bankrupt laws. He had been house-steward to Lord Northington. No certificate was produced, under the hand and seal of the minister; though the application was made (as the attorney alleged) on the part of the minister; nor was it sufficiently sworn that the defendant was in the service of the minister, at the time when he was arrested.

Lord MANSFIELD. The privileges of public ministers and their retinue depend upon the law of nations; which is part of the common law of England. And the act of Parliament of 7 Anne, c. 12, did not intend to alter, nor can alter the law of nations. His lordship recited the history of that act, and the occasion of it, and referred to the annals of that time. He said there is not one of the provisions in that act which is not warranted by the law of nations.

The law of nations will be carried as far in England as anywhere, because the Crown can do no particular favors, affecting the rights of suitors, in compliment to public ministers, or to satisfy their points of honor.

The law of nations, though it be liberal, yet does not give protections to screen persons who are not bona fide servants to public ministers, but only make use of that pretence in order to prevent their being liable to pay their just debts.

The law of nations does not take in consuls, or agents of commerce; though received as such by the courts to which they are employed. This was determined in Barbuit's Case in Canc. which was solemnly argued before and determined by Lord Talbot on considering and well-weighing Barbeyrac, Binkershoek, Grotius, Wincquefort, and all the foreign authorities (for there is little said by our own writers on this subject). In that case several curious questions were debated.

If I did not think there was enough in the present case, already appearing to the court, to enable us to form an opinion, I should desire to know in what manner this minister was accredited. Certainly he is not an ambassador, which is the first rank. Envoy, indeed, is

a second class; but he is not shown to be even an envoy. He is called "minister," 'tis true, but minister (alone) is an equivocal term.

I find this is not an application by the attorney-general by the direction and at the expense of the Crown. That, indeed, would have shown that the Crown thought this person entitled to the character of a public minister. It now remains uncertain what his proper character is.

But supposing him to be a minister of such a kind as entitles him to privilege; yet I think this is not a case of privilege by the law of nations, for the defendant does not appear to have been in the service of the minister at the time of the arrest.

A public minister shall not take a man from the custody of the law; though the process of the law shall not take his menial servant out of his service.

Here it is not sworn when the defendant came into the service. And upon the manner of swearing here used, the court must take it "that he was not in the minister's service at the time of the arrest." Mr. Justice YATES was not in court.

Mr. Justice ASHTON concurred. The rule laid down by Lord MANSFIELD is a very right one. The process of the law shall not, indeed, take a person out of the service of a public minister; but, on the other hand, a public minister cannot take a person out of the custody of the law. If a man has no such privilege at the time of his being arrested, no subsequent privilege can be given him, by being afterwards taken into the service of a public minister.

Therefore, as it does not appear here that the defendant was then in the service, he cannot be entitled to this privilege.

This is a true and right principle, and the establishing it may prevent many of these applications.

Mr. Justice HEWITT concurred, and repeated and confirmed the principle; and agreed that it does not here appear that the defendant was, at the time of the arrest, in the service of this minister.

Lord MANSFIELD took occasion to observe that the registering the name of the defendant in the Secretary of State's office, and transmitting it to the sheriff's office (mentioned in the fifth section), relates only to the bailiff who arrested him and is no condition precedent to the being entitled to the privilege of a public minister's servant. In this, Mr. Justice ASHTON also concurred.

PER CUR. unanimously:

Rule discharged.10

10 See the early case of Crosse v. Talbot, 8 Mod. 288 (1724); and see ante, p. 2, for Triquet v. Bath, 3 Burr. 1478 (1764).

The following are famous cases from the text-books cited incidentally, but not decided in the law reports: A. Cases of criminal jurisdiction: Case of Leslie, Bishop of Ross, 1571, to the effect that the ambassador of a deposed sovereign is entitled to diplomatic immunity, 2 Ward's Law of Nations, 486; Mendoza's Case, 1584, holding that an ambassador should not be punished, but may be sent out of the country, Id. 522; Case of Da Sa, 1653, in which SCOTT INT. LAW-19