"It is to be observed, however, with regard to the case of a corporation, where the court making an exception from its general rules allows persons who are merely witnesses to be made codefendants for discovery, that the exception does not depend on any reasons springing out of the nature of bills and cross-bills; for the officers of a corporation may be sued with the corporation, even where no litigation has been commenced by the corporation; nor does the liability of the officers to discovery affect the question who is to be plaintiff; for the corporation sues for the corporate property without joining any officer of the corporation as a co-plaintiff.

"The rule of the court as to corporations, if it proves anything, would seem to show that in a cross-bill against the United States, there would be a right to join some officer of the United States for the purpose of discovery.

"The Vice-Chancellor appears to have thought that the President of the United States was not an officer who could thus be joined as a defendant, and I do not desire to express an opinion differing in that respect from the opinion of his Honor. But if the reference to suits against corporations does not establish a right to make some officer of the United States a co-defendant to a cross bill, it is, as I think, altogether irrelevant. It is, however, in my opinion, an error to suppose that the right of a plaintiff to sue depends in any way on the effectiveness of the discovery which on a cross-bill can be exacted from him. From an infant, a lunatic, a representative, trustee, or executor, wholly ignorant of the occurrences which are the subjects of the suit, no practical discovery can be obtained, and yet they can maintain a suit.

“I apprehend that the only rule is, that the person, State, or corporation which has the interest must be the plaintiff, and the court will do the best the law admits of to secure to the defendant such defensive discovery and relief as he may be entitled to. The court can in all cases suspend relief on the original bill until justice is in this respect done to the defendant.

“The case of the Columbian Government v. Rothschild, 1 Sim., 94, however, was said to be, and the Vice-Chancellor appears to have considered that it was, a binding authority against a suit in this form. I cannot so view that case. The bill was filed in the name of the State of Columbia, and if this bill had been filed in the name of the Government of the United States, the case would have been analagous. Dealing with the words before him, Sir John Leach appears to have held, and to have most properly held, that an unknown and undefined body, such as the government of a State, could not sue by that quasi-corporate name, and the expressions in his

judgment seem to me to intimate no more than that if the persons so described could sue at all they must come forward as individuals, and show that they were entitled to represent their State.

"Nothing could be more unreasonable than to suppose that by observations of this kind Sir John Leach meant to decide for the first time, that a republic could not sue in its own name, but must have, or must create, some officer to maintain a suit on its behalf.

66 I think the demurrer in this case must be overruled." 1

1 Other cases bearing upon the subject of this section are: The King of Spain v. Hullet and Widder, 1 Clarke and Finnelly, 348 (1833):-Don Justo José de Machado was appointed by the Spanish government to receive money for that government due from France. Upon receiving it, Machado brought the money to England and deposited a considerable portion of it with the defendants. The King of Spain applied to Machado for the money, but this demand was refused, whereupon the King brought a bill for discovery and for payment of the money into court, against Machado (who was out of the jurisdiction). The bill was demurred to for lack of parties, etc., but the demurrer was overruled, and the defendants appealed, mainly on the ground that it had never been held that a foreign sovereign could sue in courts of equity in England, and on principle such suit should not be allowed. This appeal was dismissed. Fifteen days later, the defendants filed a cross-billin Chancery, the rules of which court compel the identical plaintiff in the original bill to himself swear to his answer to a cross-bill. The plaintiff asked to put in an answer either by his agent, or without oath or signature.

The House of Lords refused to deviate from the practice of the court. Rothschild v. Queen of Portugal, 3 Younge and Collyer 594, (1839):-The bill was brought for discovery from the Queen of Portugal, as to matters stated in the bill, and for a commission to examine witnesses in Portugal, and for an injunction to restrain an action commenced against the plaintiff by the Queen of Portugal. This action was in contract, the Queen suing Messrs. Rothschild on some bonds deposited with them. The present plaintiffs now seek by this bill for discovery of certain correspondence and other matters to aid them in their defence. The Queen demurs to the bill on two grounds, (1) that as a sovereign, the suit was not maintainable against her—(2) that the plaintiffs had made no case for discovery.

The first point only is considered.

The court overruled the demurrer, and, in the course of its decision, Baron Alderson said: "I am therefore of opinion that Her Most Faithful Majesty being a suitor voluntarily in a court of English law, becomes subject, as to all matters connected with that suit, to the jurisdiction of the Court of Equity."

SECTION 10.-IMMUNITIES OF DIPLOMATIC AGENTS.

(a) Criminal Jurisdiction.

CASE OF LESLIE, BISHOP OF ROSS, 1571.

(Ward's Law of Nations, II., 486.)

Is the ambassador of a deposed sovereign entitled to the immunites accorded to diplomatic agents?

In the year 1567, Leslie, Bishop of Ross came to the court of England, in behalf of Mary Queen of Scots; who, although she was detained prisoner in England, was allowed to send him to plead before the commissioners appointed to examine into her cause. Nothing was determined by the commission: but Leslie continued at court, and exercised the office of ambassador of Mary for the space of one year, when, being concerned in raising a rebellion against the English Government, he was committed to the custody of the Bishop of London. From this he was soon liberated, and returning to his function of ambassador, continued to preserve it near two years longer. At that time, being detected in the attempt to raise a serious conspiracy in favor of Mary, against Elizabeth, he was once more committed; and the following questions concerning him were propounded to David Lewis, Valentine Dale, William Drury, William Aubrey, and Henry Jones, learned civil lawyers: 1. Whether an ambassador, procuring an insurrection in the Prince's country towards whom he is ambassador, is to enjoy the privilege of an ambassador?

2. Whether he may not, jure gentium et civili Romanorum, be punished as an enemy, traitor, or conspirator against that Prince, notwithstanding he be an ambassador?

To these two questions they answered: "Touching these two questions, we are of opinion, that an ambassador procuring an insurrection or rebellion in the Prince's country towards whom he is ambassador, ought not, jure gentium et civili Romanorum, to enjoy the privileges otherwise due to an ambassador: but that he may, notwithstanding, be punished for the same.

3. Whether, if the Prince be deposed by the common authority of the realm, and another elected and invested of that crown, the solic

itor or doer of his causes, and for his aid (although the other Prince do suffer such one to be in his realm), is to be accounted an ambassador, or to enjoy the privilege of an ambassador?

To this they answered: "We do think that the solicitor of a Prince lawfully deposed, and another being invested in his place, cannot have the privilege of an ambassador; for that none but Princes, and such other as have sovereignty, may have ambassadors.”

4. Whether a Prince, coming into another realm, and remaining there under custody and guard, ought, or may have there his solicitor of his causes, and if he have, whether he is to be accounted an ambassador?

To this they answered: "We do think that a Prince coming into another Prince's realm, and being there under guard and custody, and remaining still a Prince, may have a solicitor there; but whether he is to be accounted an ambassador, that dependeth on the nature of his commission.”

5. Whether, if such a solicitor be so appointed by a Prince so flying, or coming into another Prince's realm-if the Prince in whose realm the Prince so in guard, and his solicitor is, shall denounce, or cause to be denounced, to such a solicitor or to such a Prince under custody, that his said solicitor-shall hereafter be taken for no ambassador-whether then such solicitor or agent can justly claim the privilege of ambassador?

To this they answered: "We do think that the Prince to whom any person is sent in message of ambassador, may for causes forbid him to enter into his lands, or when he hath received him, command him to depart; yet so long as he doth remain in the realm, and not exceed the bounds of an ambassador, he may claim his privilege as ambassador, or solicitor, according to the quality of his commission." 6. Whether, if an ambassador be confederate, or aider, or comforter of any traitor, knowing his treason toward that prince, toward whom, and in whose realm he pretendeth to be ambassador, is not punishable by the Prince in whose realm and against whom such treason is committed, or confederacy for treason conspired?

And to this they answered: "We do think that an ambassador aiding and comforting any traitor in his treason toward the Prince with whom he pretendeth to be ambassador in his realm, knowing the same treason, is punishable by the same Prince against whom such treason is committed."

These answers of the civilians were supposed to be so decisive in favor of the intentions of the court, that the Bishop was sent for from his confinement in the Isle of Ely, and after being sharply rebuked, was told he should no longer be considered as an ambas

sador, but severely punished as one who well deserved it. He, however, answered with much firmness and apparent knowledge of the law of nations, "that he was the ambassador of an absolute Queen, and of one who was unjustly deposed, and had, according to his duty, carefully endeavored to effectuate the delivery of his Princess, and the safety of both kingdoms; that he came into England with the full authority of an ambassador, upon public warrandise, or safe conduct which he had produced; and that the sacred privileges. of ambassadors were by no means to be violated."

Burleigh, in return, observed "that no privilege or public warrandise could protect ambassadors that offend against the public majesty of a Prince, but they are liable to penal actions for the same; otherwise lewd ambassadors might attempt the life of Princes without any punishment." The bishop persisted in his positions, and maintained that the privileges of ambassadors had never been violated via juris sed via facti, not by regular form of trial, but by violence; his boldness, or the true view which he seems to have taken of this nice subject, appears so far to have weighed with the Ministers of Elizabeth, that they did not dare to put him to death, with the Duke of Norfolk and other conspirators, but after detaining him for some time in prison, banished him the country in 1573.

MENDOZA'S CASE, 1584.

(Ward's Law of Nations, II., 522.)

An ambassador cannot be punished, but may be sent out of the country.

In the year, 1584, Mendoza, the Spanish ambassador in England, having conspired to introduce foreign troops, and dethrone the Queen, it was a matter of difficulty how he should be punished. Had the council thought the opinions of Lewis Dale and the other civilians good law, they probably would have acted upon them; for here was a case precisely similar to that on which they had been consulted. They however took the opinions of the celebrated Albericus Gentilis, then in England, and of Hottoman in France, who both asserted that an ambassador, though a conspirator, could not be put to death, but should be referred to his principal for punishment; or, (according to Hottoman) sent away by force out of the country. In consequence of this, Mendoza was simply ordered to depart the realm, and a commissioner sent to Spain to prefer a complaint against him. (Camden, 296.)