the concession, and of £100,000 for libel, and asked that the Republic be enjoined from declaring the concession void. That part of the counterclaim relating to the libel was struck out by the court, whereupon the plaintiffs asked that the other portion of the counterclaim should also be struck out.]

NORTH, J. . . . They have applied now that the other portion of the counterclaim may be struck out too. They say that a foreign Government coming here to sue can be met by defence or counter-claim with respect to the matters incident to the subject-matter of the action brought by the foreign Government; but the plaintiffs deny, and the defendants allege that, by the foreign Government coming here as plaintiffs, they have submitted to the general jurisdiction of the Court, so as to be capable of being caught and sued here in respect of any matter which would be a proper subject of litigation between them if the two parties were private individuals, both resident in this country, and subject to the jurisdiction of its Courts.

Now, on that, several cases were cited as to the position of a foreign Government coming here to sue. There are only two or three that I need refer to very shortly. The first is Duke of Brunswick v. King of Hanover, 6 Beav. 38, where Lord Langdale says I need only read a few lines of a very long judgment "The cases which we have upon this point go no further than this; that where a foreign Sovereign files a bill, or prosecutes an action in this country, he may be made a defendant to a crossbill or bill of discovery in the nature of a defence to the proceeding, which the foreign Sovereign has himself adopted. There is no case to shew that, because he may be plaintiff in the courts of this country for one matter, he may therefore be made a defendant in the courts of this country for another and quite a distinct matter; and the question to be now determined is independent of the fact stated at the bar, that the King of Hanover is or was himself plaintiff in a suit for an entirely distinct matter in this court." It is clear that Lord Langdale considered the law settled. There may be a proceeding against a foreign government plaintiff by way of counter-proceeding, by cross-bill, or, what I take to be not the same as a cross-bill, a bill of discovery-it might be either a bill of discovery, if necessary, or a cross-bill-in the nature of a defence to the proceedings set up by the plaintiff; but not a proceeding setting up

against the Sovereign another claim in respect of another and entirely distinct matter.

Then there was a case-Strousberg v. Republic of Costa Rica, 29 W. R. 125,-where the Republic of Costa Rica had sued Strousberg in this country, and judgment had been recovered in that action for them. There had been a final judgment for the payment of large sums of money; there had been no crossbill apparently, or cross-action, pending that action; but, after it was disposed of, and final judgment had been recovered, Strousberg sought to sue the Government of Costa Rica in this country for the purpose of setting up a claim to meet the claim. of the Government under the judgment. That proceeding was clearly wrong. If he could have taken any step, it ought to have been to stay proceedings in the action under which the judgment had been recovered; but in the course of the judgment both the Master of the Rolls and James L. J. made certain observations, not essential for the judgment, but arising out of the matter before the Court, that are useful to be considered. Pollock B. had made an order in chambers allowing service of the writ in this new action upon the ground that it was in the nature of a cross-action. Thereupon the Government entered a conditional appearance and moved to discharge the order. The Court of Appeal decided that the order ought not to have been made, and ought to be discharged. The Master of the Rolls pointed out it was made under a misunderstanding. He said, the learned judge "was told, and he seems to have adopted the statement without sufficient knowledge of the prior proceedings, that it was in the nature of a counter-claim or cross-action, and in that case, no doubt,❞—that is to say, if it was a counter-claim or cross-action-"you can make a Sovereign State a defendant, with a view of doing justice in the original action brought by the Sovereign State"-not settling every possible matter in dispute between the parties, but doing justice in the original action. Then James L. J. says: "It appears to me that it is due from one nation to another, that one Sovereign should not assume or usurp jurisdiction over another Sovereign. It is a violation of the respect due to a foreign Sovereign or State to issue the process of our Courts against such Sovereign or State. There is but one exception, if it can be called an exception, to the rule, and that is where a foreign Sovereign or State comes into the Courts of this country for the purpose of obtaining some remedy; then by way of defence to that proceeding, the

person sued here may file a cross-claim against that Sovereign or State for enabling complete justice to be done between them. The defendant in that case is, in fact, only giving to the foreign Sovereign's attorney or solicitor notice of the proceedings-for that is, in substance, what it comes to-so as to bring in whatever defence or counter-claim there might be as a set-off. We went recently very fully, in the case of The Parlement Belge, 5 P. D. 197, into the question of the extent to which the Courts of this country ought to go, even as to property of a foreign Sovereign found here, and I have no hesitation, having fully considered the matter, in arriving at the conclusion I have now stated." Then he said there was one other case in which a for'eign Sovereign might be joined as defendant to an action, and that was where he was, or was alleged to be, one of several claimants upon a fund over which the Court had jurisdiction. I do not read the part of the judgment relating to that, because it is not material to the case here.

Now, I believe the law is still exactly as it was stated to be at the time Lord Langdale laid it down in the way in which he did. Here the defendant has brought in a counter-claim, and there seem to me to be two questions on it, first of all, whether it is a case in which, having regard to the action in which the foreign Government has submitted to the jurisdiction, this is a case in which a counter-claim such as this can properly be put in; and, secondly, if it is, whether as a matter of convenience, assuming the Court could allow it, it is more convenient that the subject-matter should be dealt with in a separate action, or in this action. .

[The learned judge found that the sums of money alleged in the counterclaim to be due to the defendants were not sums in respect of which the defendants had any claim upon the fund then in question. "The claim, if any, is against the Government for particular sums, which would have to be paid by the Government out of its general revenues, and for which there is no claim on the fund in question in any way.' The counterclaim was therefore struck out.]

NOTE. The privileges and immunities which attach to sovereigns and their agents when in foreign territory are universally recognized, but the most eminent authorities have differed as to their basis and their source. Lord Mansfield derived them from international law. Not having been conferred by any one state, they may not be withdrawn by any one state. A privilege or right which is derived from all

may only be cancelled by all, Heathfield v. Chilton (1767), 4 Burrow, 2015. Chief Justice Marshall found that such privileges and immunities are based upon a tacit or implied promise to refrain from exercising jurisdiction, and that it is with this promise in mind that sovereigns enter foreign territory or send their diplomatic representatives and public vessels thither, The Schooner Exchange v. McFaddon (1812), 7 Cranch, 116. If this be true, then a state is bound to observe such immunities only with reference to those persons who have already entered its jurisdiction, but it is free to give notice that for the future it will assert jurisdiction over all persons and things within its limits. Such an announcement would not contravene any promise either express or implied, and would not constitute a breach of faith. A state making such an announcement however would undoubtedly be met by the claim that the immunities of sovereigns and their agents are not subject to alteration by any one member of the family of nations, but have been established by common consent and rest upon the same basis as do all other rules of international law.

Although doubt was once expressed by Lord Thurlow, it is now well settled that the courts both of law and of equity are open to suits by foreign sovereigns, Hullett v. King of Spain (1828), 1 Dow. & Clark, 169; Duke of Brunswick v. King of Hanover (1828), 2 H. L. Cases, 1; King of Prussia v. Kuepper (1856), 22 Mo. 550. It was once thought that the suit of a foreign state must be brought in the name of an individual upon whom process could be served, Colombian Government v. Rothschild (1826), 1 Sim. 94, but it is now recognized that suit may be brought in the name of the state itself, United States v. Prioleau (1865), 35 L. J. Ch. (N. S.) 7; United States v. Wagner (1867), L. R. 2 Ch. 582; South African Republic v. La Compagnie Franco-Belge [1897] 2 Ch. 487. While the property of a state is generally exempt from judicial process, yet if it is in the possession of a person subject to the jurisdiction of a court of equity, the court will sometimes control its disposition, Gladstone v. Musurus Bey (1862), 1 H. & M. 495; Gladstone v. The Ottoman Bank (1863), 1 H. & M. 505. In the important case of von Hellfeld v. Russian Government (1910), Am. Jour. Int. Law, V, 490, it was held that although the Russian Government had submitted to the jurisdiction of the German court in Kiao-chau, execution on the judgment there obtained against Russia could not issue against Russian property in Berlin. While a state is exempt from suit it may waive its immunity either expressly, Porto Rico v. Ramos (1914), 232 U. S. 627, or by entering its appearance, Richardson v. Fajardo Sugar Co. (1916), 241 U. S. 44, or by intervening in a private suit to protect its own interests, Veitia v. Fortuna Estates (1917), 240 Fed. 256.

If a sovereign institutes an action in the courts of another country, he subjects himself to many of the rules applicable to private litigants. "He brings with him no privileges that can displace the practice as applying to other suitors," The King of Spain v. Hullett (1838), 1 C. & F. 333; The Newbattle (1885), 10 P. D. 33. He may be required to give security for costs, Rothschild v. Queen of Portugal (1839), 3 Y. & C. 594; Honduras v. Soto (1889), 112 N. Y. 310; or to

meet any defenses, set-offs or cross-bills incident to the subject-matter of the action, The Jane Palmer (1820), 270 Fed. 609; or to be bound by a lien on property for which it sues, United States v. Prioleau (1865), 35 L. J. Ch. (N. S.) 7. But a counterclaim independent of the original transaction or which could be made the basis of an affirmative judgment cannot be set up against the plaintiff, Kingdom of Roumania v. Guaranty Trust Co. (1918), 250 Fed. 341. In this respect a sovereign is not in the same position as a private litigant, The French Republic v. Inland Navigation Co. (1920), 263 Fed. 410. For further discussion of the rights and immunities of sovereigns, see Munden v. Duke of Brunswick (1847), 10 Q. B. 656; Wolfman, "Sovereigns as Defendants," Am. Jour. Int. Law, IV, 373; Weston, "Actions against the Property of Sovereigns," Harvard Law Review, XXXII, 266; van Praag, Juridiction et Droit International Public, 438-453; Cobbett, Cases and Opinions, I, 94; Borchard, sec. 72; Bonfils (Fauchille), sec. 632; Hyde, I, 430; Moore, Digest, II, 558.

SECTION 2. DIPLOMATIC AGENTS.

THE MAGDALENA STEAM NAVIGATION COMPANY v.

MARTIN.

COURT OF QUEEN'S BENCH OF ENGLAND. 1859.

2 Ellis & Ellis, 94.

LORD CAMPBELL C. J. now delivered the judgment of the Court.

The question raised by this record is, whether the public minister of a foreign state, accredited to and received by Her Majesty, having no real property in England, and having done nothing to disentitle him to the privileges generally belonging to such public minister, may be sued, against his will, in the Courts of this country, for a debt, neither his person nor his goods being touched by the suit, while he remains such public minister. The defendant is accredited to and received by Her Majesty as Envoy Extraordinary and Minister Plenipotentiary for the Republics of Guatemala and New Granada respectively; and a writ has been sued out against him and served upon him, to recover an alleged debt, for the purpose of prosecuting this action to judgment against him whilst he continues such public minister. He says, by his plea to the jurisdiction of the Court, that, by reason of his privilege as such public minister, he ought not to be compelled to answer. We are of opinion that his plea