and "The Davis," in which maritime liens were held to attach to property of the United States just as to property of individuals.

In international law.

The discussion thus far has related to the immunity of the state from suit in its own courts. The immunity in the courts of another state must, of course, rest upon a different basis. It is founded upon the international comity according to which, in the language of Chief Justice Marshall, "all sovereigns have consented to a relaxation, in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers," in favor of other sovereigns.

The extent of the exemption depends upon the point of view. Sir Robert Phillimore, in the case of "The Charkieh," stated the principle to be that the sovereign “is personally exempt from all process in a civil cause, and from any action which renders such service necessary.' An admiralty proceeding in rem does not require such service. The exemption of property of a foreign sovereign from such an action he rested, therefore, not upon the immunity from suit, but separately upon the same "object of international law" as sustains the personal immunity from suit" to substitute negotiations between governments . . . for the ordinary use of courts of justice in cases where such use would lessen the dignity or embarrass the functions of the representatives of a foreign state." He limited the exemption, accordingly, to cases where the res can in any fair sense be said to be connected with the jus coronæ of the sovereign"; though he doubted but what, even in the case of a public war vessel, a proceeding in rem might be maintained where a maritime lien is given by the jus gentium. A similar view-that certain classes of property devoted to religious or public purposes are exempt from liens, but that where such a lien exists it may be en

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forced in rem—is indicated in the opinion of Justice Story in U. S. v. Wilder.1 Chief Justice Waite, also, in "The Fidelity," took the view that the exemption of public vessels from admiralty suits in rem arises not out of a want of power to sue the public owner, but out of a want of liability on the part of the vessel. All of these expressions, it may be said, are purely obiter.

The position of Sir Robert Phillimore was repudiated by the court of appeals in "The Parlement Belge,' 993 reversing his decision refusing exemption to a vessel, the public property of Belgium, used for the mails, and incidentally engaged in ordinary carrying trade. The court criticized his “intimation of an opinion, not yet conclusively formed, that proceedings in rem are a legal procedure solely against property, and not directly or indirectly against the owner of the property"; and regarded a libel in rem as an indirect way of impleading the owner, the result of admiralty necessity. "To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests." The same view of a libel in rem was taken by the judicial committee of the privy council in Young v. S. S. Scotia, in which it was held that a lien for salvage could not be enforced against a ferry-boat, the property of the crown, destined for service in the operation of a government railway in Canada. "Where you are dealing with an action in rem for salvage, the particular form of procedure which is adopted in the seizure of the vessel is only one mode of impleading the owner." In "The Jassy," a vessel owned under similar conditions by the Roumanian government was held exempt. In Mason v. Intercolonial Railway of Canada," the supreme court of Massachusetts

dismissed for want of jurisdiction a suit by trustee process for a tort against the Intercolonial Railway, unincorporated, the property of the crown.

The better view, then, of the principle governing the immunity of a state from suit in the courts of another state, is that no state will subject another state to its territorial jurisdiction; so that the immunity extends, not only to actions requiring personal process, but also to actions in rem against the property of the state.

CHAPTER II.

THE DOCTRINE IN THE UNITED STATES. UNDER THE FEDERAL CONSTITUTION.

In Chisholm v. Georgia,1 some doubt was expressed as to the applicability of the doctrine of non-suability of the state to a republic. Justice Wilson limited the doctrine to autocratic sovereigns. In the United States, according to his view, the people are sovereign; they have not delegated all their powers to the State governments; hence these governments-or, regarded as artificial persons, the States -are not sovereign in this sense. This reasoning applies as much to the United States as to a State; though Justice Wilson did not expressly say that the United States is liable to suit. Doubtless, he would have found some ground of distinction. Chief Justice Jay adopted a somewhat different line of reasoning. Immunity from suit, he said, naturally attached to a feudal sovereign as the sole fountain of justice; but where the citizens are equal and are joint tenants of the sovereignty, there is no reason why one citizen may not sue the rest. He saw no more difficulty in a suit against the fifty thousand citizens of Delaware, than against the forty thousand of the city of Philadelphia. The liability of the United States to suit he doubted simply on the practical ground that the courts of the United States could not rely on the executive arm of the government in such case to support their proceedings and judgments.

Manifestly, these views are based on false political theories. And the doctrine of non-suability of the state was early established in American law. It was accepted by all in the discussions in convention over the clause in the constitution extending the judicial power of the United 12 Dall. 419.

States to "controversies between a State and the citizens of another State." It was no doubt clinched by the storm of protest raised by Chisholm v. Georgia. No State court has seriously questioned it. And in Cohens v. Virginia,1 in which, according to Justice Miller, the general doctrine was first recognized by the supreme court, it was taken for granted.

A different question is whether, in our federal system, the United States and the States, respectively, are entitled to immunity from the jurisdiction of the courts of the other. The State courts have never denied the immunity of the United States. And, as might be expected, the supreme court will enforce this immunity, as in Stanley v. Schwalby, by reversing the action of a State court. This action is abundantly justified on the ground of the supremacy of the federal government, or of an implied principle of our federal system, as in the matter of exemption of federal and State governmental agencies, respectively, from taxation by the other.

The question of the liability of a State to suit in a court of the United States arose upon a construction of the provision of article III of the constitution, that "The judicial power of the United States shall extend . . . to controversies . . . between a State and citizens of another State." In August term, 1791, Alexander Chisholm, a citizen of South Carolina, brought action of assumpsit in the supreme court against the State of Georgia. On July 11, 1792, the marshal for the district of Georgia made return of service on the governor and attorney general of Georgia. On August II, Attorney General Randolph, counsel for plaintiff, moved: "That unless the State of Georgia shall, after reasonable previous notice of this motion, cause an appearance

26 Wheat. 382.

162 U. S. 255. In this case, the Texas court considered that the United States had waived its immunity. The supreme court held

contra.

3 See also Carr v. U. S., 98 U. S. 433.

* 2 Dallas 419. Similar cases brought about the same time-Van Stophorst v. Md., 2 Dall. 401, Oswald Admr. v. State of N. Y., 2 Dall. 401, 2 Dall. 415.