requirement may be attributable to a decision of the Supreme Court of the United States in 1869, in a case not involving any question of international law. On principle, however, it would seem that not the ownership or exclusive possession of a ship by a foreign sovereign gives rise to the claim of immunity, but rather the appropriation and devotion of the vessel to the public service under governmental authority. This idea has found some judicial approval in the United States. When a ship which has been the immunity of property of a sovereign, whether the United States or a foreign sovereign, depends, not merely upon the ownership, but also upon the actual possession by the sovereign of the property at the time the process is served. The Davis. 10 Wall. 15, 19 L. Ed. 875; Long v. The Tampico (D. C.), 16 Fed. 491; The Attualita, 238 Fed. 909, 152 C. C. A. 43." It may be noted that in this case the vessel was owned and operated by the Italian Government, and clearly entitled to the exemption demanded in its behalf. See, in this connection, Fred K. Nielsen, "Lack of Uniformity in the Law and Practice of States with Regard to Merchant Vessels", Am. J., XIII, 1, 12–21.

The case was that of The Davis, 10 Wall. 15, where the question was whether personal property of the United States on board a vessel for transportation, was subject to a lien for salvage services rendered in saving the property; and whether, also, such a lien should be enforced when the property was not in the possession of an officer of the Government, and the process of the Court could be enforced in a proceeding in rem without disturbing the possession of the Government. No question of international law was involved. The reason for permitting the enforcement of the lien under the circumstances stated, was because such action did not conflict with the theory on which the Government was exempt from local process without its own consent. That theory was not identical with that on which, under the law of nations, a foreign sovereign claims and enjoys exemption for vessel property. The distinction between the nature of the two claims was thus tersely emphasized by Charles H. Weston in "Actions Against the Property of Sovereigns", Harv. Law Rev., XXXII, 266, 270: "It is said that the principle governing both cases is the same since immunity is granted out of respect for the 'independence of sovereign authority.' In so far as this phrase expresses the policy underlying the decisions, it merely cloaks the difference between them. In cases involving the local sovereign it represents the State's need for executive freedom from harassing litigation. In cases involving the foreign sovereign it indicates the desire to avoid international friction by substituting diplomatic negotiations for the decrees of local tribunals."

See, also, The Roseric, 254 Fed. 154, 161, where Rellstab, J., declared "The immunity of the sovereign's instrumentalities devoted to public service from the process of its own courts, as I understand the previous cases, is not based upon the idea that it may be 'safely accorded', but on account of its dignity and independence, and because it is necessary, for the well-being of the nation that it serves, that it shall not be hampered or interfered with in the use of such instrumentalities.

"In the case of the courts of one sovereignty waiving jurisdiction over another sovereignty's instrumentalities, the thought of safety to private litigants, to my mind, is at least equally irrelevant. The immunity in such cases, as already noted, is based upon the idea that sovereigns are of equal dignity and independence, and that out of regard for such rights, and to maintain and further amicable relations among them, it is, by tacit agreement, recognized as needful, in certain particulars, that one sovereign should decline to exercise some of its prerogatives when to exercise them would necessarily place another sovereign in a subordinate position."

2 Rellstab, J., in The Roseric, 254 Fed. 154, 160. See, also, the reasoning in The Parlement Belge (1900), L. R. 5 P. D. 197, 217; The Crimdon, 35 Times L. R. 81; The Messicano, 32 Times L. R. 519.

NEED OF GENERAL AGREEMENT

[$ 257 requisitioned for a definite public service, such as an admiralty transport, is engaged in the carriage of governmental supplies, and the officers acknowledge the duty to obey the governmental assertion of control and act accordingly, the circumstance that the vessel is neither owned nor actually possessed by the requisitioning State would appear to be immaterial. In such case the dedication of the ship to the public service would seem to render the constructive possession by the sovereign as efficacious for purposes of exemption as actual possession manifested by the assertion of control through the medium of its own officers.1

257. The Same.

Should the nationalization of merchant vessels, by requisition or any other process, serve to create a large volume of tonnage engaged under governmental control in commercial enterprise, and notably in foreign trade, there would be reason to withhold exemptions not accorded private ships, unless there was definite understanding that the State of the flag should assure full responsibility for the conduct of its vessels, and also place within the reach of the individual claimant a simple and direct means of obtaining justice. Obviously the matter is one demanding general international agreement to establish a reasonable substitute for the broad yielding of jurisdiction by the territorial sovereign.3 It should be observed, however, that, in the meantime, any restriction of the existing right of exemption is hardly a matter within the discretion of the courts. While the individual State may

4

1 See Brief by Messrs. Coudert Brothers, in support of suggestion of British Embassy in the case of Muir v. Chatfield, in the Supreme Court of the United States, October Term, 1918, No. 28, Original.

2 It is believed that the success with which the principles laid down in the case of The Schooner Exchange v. McFaddon, and in that of The Parlement Belge have generally been invoked in behalf of foreign public vessels has been due in part to the infrequency of the demand for exemption from local process, and also to the resulting circumstance that the mutual public benefits attributable to respect for the exemption claimed have far outweighed any opposing equities of the libelants. It is not without significance that the number of litigated cases in the United States between 1915 and 1919 far exceeded that of those confronting American tribunals throughout the entire previous life of the nation.

3 As to the nature of an efficacious substitute there may be a wide diversity of opinion. It may be suggested that the establishment of an international maritime tribunal or commission available as a court of first instance within the port of the territorial sovereign, and supposedly representative of the State of the ship as well as of that sovereign might fulfill the necessary function. The numerous treaty provisions conferring upon a consular officer jurisdiction of certain classes of disputes arising between officers and crew of merchant vessels of his nation afford a significant precedent.

4 Hough, J., in The Maipo, 259 Fed. 367.

not lawfully by legislative enactment modify the requirements of international law, it may without impropriety express its own view as to what they demand, and in so doing announce a rule for the guidance of its courts.

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§ 258. Other Foreign Public Property.

The matter of the exemption from local jurisdiction of public property belonging to a foreign State and other than its vessels, is affected by the principle that a foreign sovereign cannot be sued without its consent. The attempt, therefore, to make it a party defendant and incidentally attach its property, must fail.1 If such a sovereign invokes the aid of a local court of equity in order to acquire possession of property to the title of which it has succeeded, it may, doubtless, be fairly deterred from taking possession without satisfying a lien accruing prior to its ownership.2 While a foreign State, on becoming a plaintiff, subjects itself to the obligation to satisfy a set-off arising out of the same action, it does not expose itself to the defense of a proceeding setting up another claim in respect of another and entirely distinct matter.3 Such a State by bringing suit does not subject itself to a counterclaim on which an affirmative judgment is asked.4

With respect to property owned by a foreign sovereign, exemption is yielded, according to American judicial opinion, when the owner or its agent has possession. When it lacks possession, the

Hassard v. United States of Mexico, 61 N. Y. Supp. 939, affirmed in 173 N. Y. 645 (commented on by John W. Foster, in Yale Law J., IX, 283–286); Mason v. Intercolonial Ry., 197 Mass. 349 (commented on in Mich. Law Rev., VI, 575); Kingdom of Roumania v. Guaranty Trust Co., 250 Fed. 341; also De Haber v. Queen of Portugal, 17 Q. B. 196; The Parlement Belge, L. R. 5 P. D. 197. See, also, Nathan Wolfman, "Sovereigns as Defendants", Am. J., IV, 373; Charles H. Weston, "Actions against the Property of Sovereigns", Harvard Law Rev., XXXII, 266.

2 United States of America v. Prioleau, 35 L. J. Chancery, N. s. 7, Moore, Dig., I, 64.

3 Kingdom of Roumania v. Guaranty Trust Co., 250 Fed. 341, reversing 244 Fed. 195; People v. Dennison, 84 N. Y. 272.

See, also, South African Republic v. Compagnie Franco-Belge, 1898, 1 Ch. Div. 190, 195, citing Duke of Brunswick v. King of Hanover, 6 Beav. 38; situation in case of Von Hellfeld v. Russian Government, Prussian Court for Determination of Jurisdictional Conflicts, 1910, Am. J., V. 490.

In the case of Mighell v. Sultan of Jahore, 1 Q. B. 1894, 149, the exceptional situation was noted in the case in which a foreign sovereign might be named as defendant for the purpose of giving him notice of the claim which the plaintiff made to funds in the hands of a third person or trustee over which the court had jurisdiction. See, also, Strousberg v. Republic of Costa Rica, 44 Law Times R., 199.

French Republic v. Inland Nav. Company, 263 Fed. 410.

In the case of Mason v. Intercolonial Ry. Co., 197 Mass. 349, the property

OTHER FOREIGN PUBLIC PROPERTY

[§ 258 property may be attached; but there is a constant requirement that no foreign sovereign be made a party defendant.

It may be urged that the scope of the exemption should be as broad as that demanded for and applicable to vessel property, and that dedication to a public service of a foreign sovereign rather than ownership or possession by it should afford the test of immunity. Certain American cases declaring possession to be essential to exemption of foreign public property, do not appear to assert a different rule from what is assumed or declared to be applicable to vessels. It should be noted, however, that Chief Justice Marshall in the case of The Schooner Exchange v. McFaddon, observed that there was under certain circumstances a distinction between the two classes of property. While it must be constantly borne in mind that the reason for the immunity of a sovereign from the process of its own courts is not that which gives rise to the exemption of a foreign State from local jurisdiction, and that grounds for the restriction of the immunity in the former case are not necessarily decisive in the latter, it is not believed to be arbitrary to require in the case of property other than vessels a somewhat narrower basis of exemption. It is hardly unreasonable to disregard the mere fact of dedication to the public service of a foreign sovereign, if it is neither the owner nor possessor of the property. If, however, a foreign public

was in the possession of trustees in behalf of the defendant company which was the property of a foreign sovereign. The court deemed itself to be without the right to take jurisdiction in an action of trustee process against the trustees. See, also, dictum in Tucker v. Alexandroff, 183 U. S. 424, 440.

1 See The Johnson Lighterage Co. No. 24, 231 Fed. 365; Long v. The Tampico, 16 Fed. 491; also dictum in The Carlo Poma, 259 Fed. 369, 370.

In the case of Vavasseur v. Krupp, L. R. 9 Ch. Div. 351, Moore, Dig., II, 591, the Mikado of Japan was permitted to remove from British territory shells brought from Germany to England for the use of Japanese vessels of war there building, notwithstanding the attempt of local patentees claiming infringement of their rights as such, to prevent persons in possession of the shells from delivering them to those vessels.

2 C. H. Weston, in Harv. Law Rev., XXXII, 266, 270–271.

3 Thus he declared: "Without indicating any opinion on this question, it may safely be affirmed, that there is a manifest distinction between the private property of the person who happens to be a prince, and that military force which supports the sovereign power, and maintains the dignity and the independence of a nation. A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince, and assuming the character of a private individual; but this he cannot be presumed to do, with respect to any portion of that armed force. which upholds his crown, and the nation he is intrusted to govern." 7 Cranch, 116, 145.

Obviously this distinction cannot be taken to stand for more than the reason behind it; but it seems to be important partly as suggesting that others might be made which also should be entitled to respect.

sovereign establishes the ownership, and demands possession and control, it is greatly to be doubted whether absence of possession should destroy the claim of exemption, at least in a case where no adverse lien has attached to the property prior to the sovereign's acquisition of title.1

It may be observed that the increasing tendency of States to acquire property abroad, and thus to participate in foreign commerce, oftentimes in a mode similar to that of a private trader, calls for general agreement establishing the effect of public ownership and of the particular uses of what is acquired, upon the duty of the territorial sovereign to yield exemption from jurisdiction. The problem is closely associated with that arising from the nationalization of vessel property engaged in commercial enterprise. If the law of nations is to remain flexibly responsive to the requirements of international intercourse, definite principles should be enunciated and agreed upon, and these must serve to safeguard and promote, rather than jeopardize and retard the commercial transactions of private concerns with foreign States.

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Extraterritorial Jurisdiction

$259. In General.

(a)

For centuries before the establishment of international law the commercial cities of Europe exercised certain privileges of jurisdiction over their own merchants living in foreign places where trade was enjoyed.2 The merchants of a particular city or na

1 See, for example, Vavasseur v. Krupp, L. R. 9 Ch. Div. 351.

2 See, in general, with respect to the relation of the United States to the exercise of extraterritorial jurisdiction, Consular Regulations (1896), Sections 612-653; documents in Moore, Dig., II, 693-727; Instructions to American diplomatic officers (1897), Sections 82-93, 200-240; Philip M. Brown, Foreigners in Turkey: Their Juridical Status, Princeton, 1914; The Nature of the Jurisdiction of the United States Courts Established in Foreign Countries, Harv. Law Rev., XXI, 437; E. M. Borchard, Diplomatic Protection, §§ 180 and 202; Frank E. Hinckley, American Consular Jurisdiction in the Orient, Washington, 1906; Report on Citizenship of the United States, Expatriation, and Protection Abroad, by Messrs. J. B. Scott, David J. Hill, and Gaillard Hunt, 59 Cong., 2 Sess., H. Doc. No. 326; James B. Angell, "The Turkish Capitulations", Am. Hist. Assn., Annual Report, I, 513; Edward A. Van Dyck, Reports on the Capitulations of the Ottoman Empire, Senate Ex. Doc. No. 3, 46 Cong., Special Session, and Senate Ex. Doc. No. 87, 47 Cong., 1 Sess.

Cf., also, generally, Pierre Arminjon, Etrangers et protégés dans L'Empire Ottoman, Paris, 1903; Marcel Baudez, La Condition Juridique des Etrangers en Chine, Paris, 1913; E. L. Déligeorges, Die Kapitulationen der Türkei,