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relief; and among other things *** he is obliged to answer upon oath. It is also established * * * that all persons sued in this country as a body corporate are amenable to the process of the court, and must answer by one or other of their officers upon oath, inasmuch as it is considered essential to justice that answers shall be made upon oath. * * * Now it is quite impossible, on any principle of analogy, to say that the President has been properly selected, or that he is the person for whose answer upon oath the United States must wait before they proceed in their original suit. * * * Now the selection of the President of the United States is open at once to this objection, that the court cannot take judicial notice—nor do I suppose it is a matter of fact—that the United States Government have control over their President or can compel him to produce papers or the like, and therefore I cannot make any order that the proceedings in the original suit be stayed until the President has put in his answer. * * *
"I can do no more than make an order staying proceedings until the answer of the United States is put in.”
UNITED STATES OF AMERICA v. WAGNER.
(L. R., 2 Chancery Appeals, 582.) A Republic may sue in its own name ; and it need not have or create an officer to maintain a suit on its behalf.
The bill in this suit was filed by “ The United States of America ” against agents of the Confederacy, doing business at Liverpool.
The bill alleges that the defendants had large quantities of cotton consigned to them—that in 1865 the rebellion was suppressed and that all the property held by the government of the so-called Confederate States, including all moneys, goods and ships in the power of the defendants, had vested in the plaintiffs. The bill prayed for an account, and for an order of payment of the money in the hands of the defendants, and a delivery of the goods and cotton in their hands. The defendants demurred generally, objecting that the bill should put forward the President of the United States or some state officer, upon whom process might be served, and who might answer a cross-bill.
The demurrer was allowed and now the plaintiffs appeal. The opinion of Lord Cairys, L. J., is as follows : “It is admitted that, upon the statements in the bill, it must be taken that the property claimed in the suit belongs to the United States of America, a foreign sovereign State, adopting the republican form of government, and recognized and treated with as such, and under that style, by Her Majesty; but it is contended that this foreign State, being a republic, cannot sue in its own name, and must either associate with it as plaintiff, or proceed in the name of the President of the Republic, or some other officer of state.
“ A proposition so startling, so grave in its consequences, and in such apparent antagonism to the rules, that the proper plaintiff is to be sought in the owner of the subject matter of the suit, and that a foreign State is at liberty to sue in any of our courts, would seem to require some argument and authority to support it. It was contended then, that when a monarch sues in our courts, he sues as the representative of the State of which he is the sovereign; that the property claimed is looked upon as the property of the people or State and that he is permitted to sue, not as for his own property, but as the head of the executive government of the State to which the property belongs : and it was contended, in like manner, that when the property belongs to a republic, the head of the executive, or in other words the President, ought to sue for it.
“ This argument, in my opinion, is founded on a fallacy. The sovereign, in a monarchical form of government, may, as between himself and his subjects, be a trustee for the latter, more or less limited in his powers over the property which he seeks to recover. But in the courts of Her Majesty, as in diplomatic intercourse with the government of Her Majesty, it is the sovereign, and not the State, or the subjects of the sovereign, that is recognized. From him, and as representing him individually, and not his State or kingdom, is an ambassador received. In him individually, and not in a representative capacity is the public property assumed by all other States, and by the courts of other States, to be vested. In a republic, on the other hand, the sovereign power, and with it the public property, is held to remain and to reside in the State itself, and not in any officer of the State. It is from the State that an ambassador is accredited, and it is with the State that the diplomatic intercourse is conducted.
" It was then contended that the republic of the United States as a body politic, being plaintiff, no effectual discovery could be had from it, or relief against it, on a cross-bill; that it is a condition of obtaining relief in equity, that discovery may be had against the plaintiff on a cross-bill filed by the defendant; and that in the case of a corporation, this right is preserved by the rule that its officers may be made co-defendants for discovery.
“ 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.
“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-bill in 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