It may well insist that the complainants are under the same burden to establish the existence of discrimination as to show flaws in the rule of apportionment. But it does not appear that the materiality of the point was recognized.

This of course does not establish that the cases were unwisely decided. A court cannot insist on an ideal system of state taxation, if such a thing can exist outside the minds of the doctrinaire. A rough approximation to fair treatment of interstate commerce is all that can reasonably be required. It does not appear that the interstate business of express companies was in any way discriminated against in favor of any direct competitor engaged solely in local carriage. Such discrimination against interstate commerce as the entire taxing system of the state may have resulted in, was probably remote, indirect, and practically negligible. The Ohio taxes and others like them seem to have spared the express companies and their interstate business for other foes to devour. What Mr. Justice Brewer has to say about the possibility that the decision may open the door to injustice through the conflicting action of different states applies as well to the possibility that Ohio had laid a heavier hand on some interstate commerce than on some that was local. "Such possibilities," he says, "do not equal the wrong which sustaining the contention of the appellant would at once do." 121 Fine spun theories about possible discrimination may be dismissed in the same way that Mr. Justice Brewer deals with what he calls fine spun theories about situs in the paragraph with which he closed his opinion:

"In conclusion, let us say that this is eminently a practical age; that courts must recognize things as they are and as possessing a value which is accorded to them in the markets of the world, and that no fine spun theories about situs should interfere to enable these large corporations, whose business is carried on through many States, to escape from bearing in each State such burden of taxation as a fair distribution of the actual value of their property among those States requires.” 122

But a practical age demands not only practical decisions but practical opinions to support them. The distinction between the intangible property of an interstate carrier and its franchises and business and receipts is that the intangible property, as Mr. Justice

121 166 U. S. 185, 225, 17 Sup. Ct. Rep. 604 (1897).

122 Ibid.

Brewer estimates it, is a conception that embraces the economic value of all the elements from which it is distinguished. For all his professed practicality, Mr. Justice Brewer reaches his goal by arbitrary categories and by distinctions in nomenclature which are not distinctions in reality. In escaping from the difficulties inherent in the notion that chattels are necessarily worth a capitalization of what may be earned by their use, even though they are easily divorced from that use and though substitutes for the use are readily available, the learned justice gets into new difficulties by insisting that a tax on the value of an interstate business is any the less a tax on that business because it is called a tax on intangible property. Had the Supreme Court recognized the Ohio tax on express companies for what it really was, and held that Ohio could not apply this method of assessment to any interstate business unless it also applied similar methods to all other businesses, we might not have had to wait so long for the beginnings of the fiscal reform that disregards intangibles as a subject of taxation and looks to income as the best expression of the values thus disregarded, and therefore as the most satisfactory and equitable subject from which to derive the necessary funds for governmental purposes.

(To be continued.)

Thomas Reed Powell.

COLUMBIA UNIVERSITY.

ACTIONS AGAINST THE PROPERTY OF

SOVEREIGNS

OURTS and text-writers have long been in agreement that a

COUR

sovereign cannot be sued in his own courts without his consent. It has also been generally accepted as a principle of international law that courts will not entertain a suit against a foreign sovereign if objection to the jurisdiction is made. Out of these two doctrines the rule has been developed that the public property of a sovereign falls within his general immunity. This last rule has become of great importance since governments in recent years have widely extended the scope of their ownership and control.

The immunity accorded the property of sovereigns has not been limited to actions which have as their object an adjudication of title that shall be binding upon the "whole world." The immunity has also attached to actions which attempt to reach simply the interest which particular defendants have in property. The immunity, therefore, covers both actions in rem, as that term is used in admiralty, and actions which are sometimes called actions in rem, but are perhaps better described as actions quasi in rem.

There are some early obscure precedents referred to by Bynkershoek, but the first case of any significance in this subject is The Exchange.1 Marshall, speaking for a unanimous court, refused to take jurisdiction of a libel against an armed ship which was part of the French naval forces. The basis of his decision was the international comity supposed to exist between nations, according to which each sovereign waived a part of his territorial jurisdiction in favor of every other sovereign. The reason given for this custom was the mutual benefit accruing to the several sovereigns from the implied agreement to respect one another's dignity and independence. The waiver of jurisdiction was said to be made in favor of the person of the sovereign, his ambassador, his armies passing by consent through another country, and his armed ships coming into a friendly port.

1 7 Cranch (U. S.) 116 (1812).

Marshall's reasoning was fully indorsed by the English Court of Appeals in The Parlement Belge. The case was a libel to recover damages for a collision brought against a ship belonging to the King of Belgium and used not only in carrying the mails, but also in transporting passengers and freight for hire. During the half century since The Exchange there had been a great growth in the body of the law. Whereas Marshall could not refer to a single opinion to support his conclusions, Lord Esher was able to state that, "exemption from interference by any process of any Court of some property of every sovereign is admitted to be a part of the law of nations." He decided that the principle upon which this exemption rested was the implied agreement among states to respect one another's absolute independence of every sovereign authority. He held that this principle was applicable to all the property of any state destined to public use. An additional ground of decision was that seizure of property by admiralty process indirectly impleads the owner of the property and, as said by the court,

"The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court."4

The first case to consider carefully the exemption of property of the local sovereign was Briggs v. Light-Boats. Three vessels belonging to the United States and stated to be in their possession, and which had been built for use as floating government lightships, were held not subject to statutory attachment proceedings in a state court. Judge Gray reasoned that a sovereign cannot be sued in his own courts without his consent, not because a sovereign cannot command himself, but because he must be free to perform his governmental functions. His property, likewise, must be free from court control because it is an instrument of government."

25 P. D. 197 (1880).

3 Supra.

• American Courts of Admiralty would probably not accept Lord Esher's second conclusion. The American rule is that a collision gives to the party injured a right in rem in the offending ship 'without regard to personal responsibility, the ship itself being considered the wrongdoer. The Barnstable, 181 U. S. 464, 467 (1901).

Story, J., in United States v. Wilder, 3 Sumner (U. S.) 308 (1838), took the view that in cases of salvage or general average the argument ab inconvenienti in favor

The property of a republic must be presumed to be intended for the public purposes of government, and courts cannot pass judgment upon the comparative importance of the sovereign powers of the United States.

A few years later the United States Supreme Court held in The Davis that cotton of the United States being shipped on a private vessel could be libeled for salvage services rendered in saving it. The court indicated that the reason for the exemption of property of the local sovereign was to "prevent any unseemly conflict between the court and the other departments of the government.' Only property in the actual possession of some officer charged on behalf of the government with its control was held to be free from court process. The court cited as its only authority Briggs v. Light-Boats. In that case at the time of the attachment all the vessels were still at the builder's wharf and one of them had not received any crew on board. It would therefore appear that this vessel was not in the government's possession within the meaning of The Davis. Moreover, the Supreme Court, speaking through Justice Field in The Siren,10 had previously in a strong dictum indorsed a different doctrine. The court then said:

"It is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public policy; the inconvenience and danger which would follow from any different rule. . .

"The same exemption from judicial process extends to the property of the United States, and for the same reasons.'

11

The decision in The Davis " might have been reached on other grounds if the court had distinguished between property engaged, and property not engaged, in the public service.12 Every con

of an action in rem against government property was stronger than that opposed to it. His dictum that such actions could be brought is out of line with the authorities. 7 10 Wall. (U. S.) 15 (1869). 8 Supra. • Supra.

10 7 Wall. (U. S.) 152 (1868).

11 Supra.

12 The explanation which Waite, C. J., in The Fidelity, 16 Blatch. (U. S.) 569 (1879), gave of the decision in The Davis was that the property libeled was not devoted to a public use. The cotton had been collected under the Abandoned and Captured Property Act and was being shipped to New York for sale so that the proceeds might go into the Treasury.