2

variè a claris hujus sæculi ingeniis tractata,"" though he concludes on the whole for their irresponsibility, and for the exemption of their goods from attachment for debt, &c. Puffendorf only claims for them in very short and general terms the right of personal security. Even with respect to the right to personal freedom from arrest of a foreign sovereign coming into another country on a visit of pleasure, authorities and writers on this kind of law are not at all agreed. Vattel says he cannot, in such case, be treated as subject to the common law, for the weak reason (as it seems to us) that it is not to be presumed that he has consented to such subjection.3 In Calvin's case, the Court, which consisted of all the judges and Lord Chancellor Ellesmere, laid down the law thus, "If a king of a foreign nation come into England, by the leave of the king of this realm (as it ought to be), in this case he shall sue and be sued by the name of a king, &c."4 Lord Langdale, in a case of considerable note, observed, "that no case had been produced in which, upon the question properly raised, it has been held that a sovereign prince, resident within the dominions of another prince, is exempt from the jurisdiction of the country in which he is; there was no precedent, no law, no evidence of the common consent of nations, no usage which can be relied on. It must be admitted that all the reasons assigned for the immunity of ambassadors are not applicable to the case of sovereign princes: it has been truly observed that an ambassador, if exempt from the coercive power of the law, in the country where he is, may nevertheless be compelled to submit to justice by his prince in his own country, but that if you exonerate the prince himself, justice fails altogether." But he concludes, "I think on the whole it ought to be considered as a general rule, in accordance with the law of nations, that a sovereign prince resident in the dominions of another, is exempt from the jurisdiction of the courts there;" and Wheaton lays down similar doctrine, citing authorities, however, which do not bear out his position. Ward says, a sovereign prince in a foreign country cannot be tried by the courts of that country, though he may, upon provocation,

'De Jure Belli et Pac. lib. ii. cap. xviii. s. 4-7, 9.

2 De Jure Naturæ et Gent. lib. ii. c. iii. s. 22.

3 Vattel, bk. iv. c. vii. s. 108; and he treats as an absurdity the notion that a foreign sovereign who enters another country without permission may be arrested.

47 Rep. 15 b, and see S. C. Moor. R. 803, showing this not to be Coke's comment, but the resolution of the court.

* Duke of Brunswick v. King of Hanover, 6 Beav. 40, 47, 48, 51.

Law of Nations, part i. cap. ii. s. 10.

be proceeded against with open violence, in the same way as if he had remained at home and war had been declared against him. Lord Abinger laid down that, as a general proposition, a sovereign prince cannot be made amenable to any court of judicature in this country. Neither Grotius nor Puffendorf appear to have treated of this question; but Bynkershoek3 says, "Scio et in Geldriâ et alibi príncipes externos interposito arresto in jus vocari, ut adeo ea res in mores transivit ut tanquam de re liquidâ nunc equidem inter omnes videatur constare," having previously expressed an opinion that a foreign prince in another territory, doing any thing amenable to the criminal laws, ought to be warned to depart, like an ambassador, adding, “In causâ æris alieni idem dixerim; nam arresto detinere principem ut æs alienum expungat, quamvis fortè stricti juris ratio permitteret, non permittat tamen analogia ejus juris quod de legatis ubique gentium receptum est" (which we have seen does not apply); but he goes on to deny that the question can be decided by the law of nations, inasmuch as examples (he says) are wanting.

4

Here are considerable varieties of opinion certainly; but whichever way the authorities may be thought to preponderate on the question, there can be no objection to examining it in another point of view. Lord Redesdale considered that to refuse a foreign sovereign the right of suing in our courts might be a just cause of war. But then the obligation of being sued does in effect follow of course. For certainly in case of an action in the common law courts a set-off must needs hold good against a royal as well as any other plaintiff by the statute; and in case of a suit in equity it has been decided by the House of Lords, that such a plaintiff stands on the same footing with ordinary suitors as to the rules and orders of the Court of Chancery, and is bound like them to answer a cross bill personally and upon oath. In the case of the King of Spain v. Mendizabal, Lord Eldon, C., made an order restraining the defendant from bringing an action at law, which order would have been idle if the defendant had no common law power of bringing such an action. Sir John Leach also distinctly laid down that a foreign sovereign or

1 Law of Nations, vol. ii. p. 590, and Supp. 598, 599; so Zouch, Solut. Quæst. de Jud. Legat 84.

2 Glyn v. Soares, 1 Y. & Col. (Exch.) 698.

3 De Foro Legator. c. 4.

De Foro Leg. cap. 3.

He mentions the case of a Duke of Mecklenburg

arrested in Holland in 1693 for debt.

5 Hullett v. King of Spain, 2 Bli. N. S. 60.

S. C. 1 Cla. & F. 333; and see Duke of Brunswick v. King of Hanover, 6 Beav. 1.

2

government could both sue and be sued in the courts of this country. Even the judges who incline to draw the line more strictly, fully admit that where a foreign sovereign files a bill or prosecutes an action in this country, he may be made defendant to a cross bill or a bill of discovery in the nature of a defence to the proceeding which the foreign sovereign has himself adopted, which surely admits the principle of responsibility to our courts; for it seems almost frivolous to say, that if A. sues B. the latter shall take advantage of that as an admission of A.'s liability to the jurisdiction, but that such admission shall not be good for the purpose of C.'s action; the admission, it would seem, if once made, is good for ever. At any rate by no judge or authority is it held as the Court of Queen's Bench held in the case we have referred to, that to sue a foreign sovereign was an insult. But is the summons to the debtor, which in the Lord Mayor's Court is a necessary preliminary form to obtaining a foreign attachment against the goods of the debtor in the hands of the garnishee and to which the above language was applied, anything but a mere form? Lord Mansfield thought not when he said, the rest of the court agreeing, that the very essence of the custom is that the defendant shall not have notice. In fact, attachment is not equivalent to arrest, for if it were it could not have been available against the goods of a corporation, which the legislature thought it was when they expressly exempted by stat. 9 & 10 Will. III. c. 44, s. 74, the stock of corporations created under that act from being "subject or liable to any foreign attachment by the custom of the city of London or otherwise." Attachment is a proceeding not in personam but in rem, and has been therefore likened to a confiscation in the Exchequer.5 Therefore it seems difficult to perceive how such a proceeding can be an insult to a foreign sovereign. Nor does it appear at all clearly to be any breach of the law of nations. Neither Grotius nor Puffendorf, the great masters of that lore, treat the question whether a foreign sovereign can be sued in the courts of another country, much less do they expound the law as to the liability of such sovereign's goods, locally situate in another country, to the payment of his debts. In fact, we believe it will be found that Van Bynkershoek is the only legist who has laid

De la Terre v. Bernales, 1 Hovend. Supplem. to Ves. jun. 149.

2 6 Beav. 38.

3 Tamm v. Williams, 3 Dougl. 281.

See case of Hamburg Company, 1 Mod. 212; S. C. Freem. 207. 5 Day v. Paupierre, 18 Law J. (N. S.) Q. B. 270; Bromley v. Peck, 5 Taunt. 852; Wood v. Thompson, id. 851.

1

down anything on the subject; he says, "Quod ad bona externorum principum non una tamen omnium sententia est," but he states his full assent to the doctrine, that the property of a foreign sovereign is subject to the jurisdiction of the country in which it is; and he mentions instances as follows. The Elector of Brandenburg in 1628 had his goods arrested by a creditor by order of the States-General. Money belonging to the republic of Venice was attached in 1670 by a merchant of Amsterdam. Goods of the Duke of Mecklenburg were arrested in Holland in 1689 by a creditor. Goods of the King of Prussia were attached in 1716 by order of a Dutch court of justice. And Vattel says generally, the "conventions and contracts which the sovereign, in his sovereign character and in the name of the state, forms with private individuals of a foreign nation, fall under the rules we have laid down with respect to public treaties." One of these rules is,3—It is a settled point in natural law that he who has made a promise to any one has conferred on him a real right to require the thing promised, &c. These passages however relate more directly to the second of the cases, Wadsworth v. Queen of Spain, which we mentioned as having been decided by the Court of Queen's Bench, but which differed very slightly from the former. However that court now holds that a foreign sovereign cannot be compelled to discharge a public debt due to a subject of Great Britain by any process in our courts; and that to institute such a proceeding against the goods of a foreign sovereign in the Lord Mayor's Court of the City of London is an insult; and finally settles a much vexed question by declaring that the process of foreign attachment is never applicable where the original cause of action between the plaintiff and defendant arose without the jurisdiction of the city. The last point is of great importance to merchants in the city, inasmuch as it very much narrows the applicability of the process, which, according to several strong authorities, was not so limited, although there certainly was authority, and that very high authority, the other way.

'De Foro Legat. c. 4.

2 Bk. ii. cap. 14, s. 214. And see Bodin de Republ. lib. i. cap. 8, p. 135, to the same effect.

3 Bk. ii. cap. 12, s. 163.

J. G.

ART. III. THE SCOTCH BAR AND THE HOUSE OF

PEERS.

FROM the following document our readers will learn that the

Scotch bar have taken up the constitution of the House of Peers, as a court of appeal from Scotland, in right earnest. And we understand that at the meeting of the next parliament great exertions are to be made with a view of having effect given, in some way, to the recommendations of the Report, which, we believe, proceeds from one of the ablest and most distinguished lawyers of whom the bar in Scotland can boast. The proposal made must be a delicate and difficult one for the legislature to entertain, just, fair and reasonable though it must on all hands be admitted to be. But we have the pleasure to state that nothing has transpired, in the communications with government, to whom the Report has been submitted, calculated. to discourage our friends in Edinburgh. The anomalous character of the existing system has been admitted, and we may even go the length of saying that the argument, derived from its having hitherto "worked well," has been allowed to afford no sufficient justification of the essential error and radical injustice of its principle. The Scotch bar are therefore sanguine that the Lords will, ere long, present such supreme judicial qualities, as will attract their confidence and command their respect. In reading this Report the English lawyer should know, that the Scotch bar, when met together in their corporate capacity, are a Faculty--they are termed "the Faculty of Advocates," and their chairman is called "the Dean of Faculty." Engaged in court, in the exercise of their professional functions, "they," in the words of Lord Brougham, " form the bar of that ancient kingdom." They are the bar, and thus they speak on the appellate jurisdiction.

"Extract from Minutes of Faculty of 10th July, 1851.

"The Dean present.

"The Dean stated that he had called the meeting for the purpose of directing the attention of the Faculty to the Bill, "to improve the Administration of Justice in the Court of Chancery, and in the Judicial Committee of the Privy Council," which had recently been introduced into the House of Commons.

"Mr. Inglis moved that a committee be appointed to consider the Bill, with instructions to report to another meeting of Faculty, to be held during the present session, which was seconded by the SolicitorGeneral, and unanimously agreed to.

"The following gentlemen were appointed members of committee, viz., the Dean of Faculty, the Solicitor-General, Messrs. Marshall,