cised in that class of actions. It would not import that they were to decide questions of fact, because such was not the judicial power in such actions. ..

Under the old equity system, the chancellor might at any time refer questions of fact to a jury, but it was merely to inform his conscience. He might, if he saw fit, disregard their verdict, and take it upon himself to dispose of the questions of fact absolutely, as he could have done in the first instance.1

In considering judicial power in the sense of the Federal Convention held August 27, 1787, Mr. Gouverneur Morris asked whether the apparent jurisdiction "extended to matters of fact as well as law . . . and to cases of Common law as well as Civil law." To this enquiry Mr. Wilson, on behalf of the Committee of Detail, of which he had been an industrious and perhaps the most valuable member, replied that "The Committee he believed meant facts as well as law & Common as well as Civil law." And he added, “The jurisdiction of the federal Court of Appeals had . . . been so construed." The question and the answer were not unimportant, as the framers of the Constitution were using terms which have a definite signification, and the law about which Mr. Gouverneur Morris inquired and which Mr. Wilson had in mind was the system of law obtaining in courts of admiralty and maritime Admiralty and jurisdiction to which the judicial power of the United States expressly ex- Included tends by the second section of the third article of the Constitution. With this system of law the public men of that day were familiar, inasmuch as the civil law in its technical signification meant, as distinct from the common law of England, the principles of Roman law which had found their way into the practice and procedure of courts of admiralty.

In view of the experience had with the Court of Federal Appeals, elsewhere considered; in view of the express language of the Constitution and leading decisions of the federal courts, which have given precision and refinement to admiralty procedure in the United States, it does not seem necessary to dwell upon this phase of the subject.

It is however advisable to advert to the fact that the judicial power of the United States was held in the case of Penhallow v. Doane, (3 Dallas, 54), decided in 1795, to extend to cases which had already been decided by the Federal Court of Appeals under the Confederation, but whose judgments had not been executed, and to the decision of The Betsey, (3 Dallas, 6), decided the year before, in which the Supreme Court held that the District

123 Wisconsin, 349, 350.

Documentary History of the Constitution, Vol. iii, p. 627.

See on this subject the following three out of the many cases which might be cited: De Lovio v. Boit (2 Gallison, 398), 1815, by Mr. Justice Story on Circuit; The Scotia, (14 Wallace, 170), decided by the Supreme Court in 1871; The Lottawanna (21 Wallace, 558), decided in 1874.

Maritime

Jurisdiction

An International Court

Att

of Prize

Court of the United States was not merely a court of admiralty jurisdiction, but that it was a prize court without having to be specifically created as such.

In this latter court, as is well known, the law of nations, in so far as it deals with prize, is administered, which Sir William Blackstone held in his "Commentaries" to be a part of the common law, saying:

the law of nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land.1

For this statement the learned commentator had the best of authority. Lord Chancellor Talbot had said in the case of Buvot v. Barbut, (Cases Tempore Talbot, 231), "That the law of nations in its full extent was part of the law of England." And Lord Mansfield himself, who had been of counsel in the case of Buvot v. Barbut, said in the case of Triquet v. Bath (3 Burrow, 1478, 1480), decided in 1764, that "this privilege of foreign ministers and their domestic servants depends upon the law of nations. The act of parliament of 7. Ann, c. 12, is declaratory of it." Three years later His Lordship further said in the leading case of Heathfield v. Chilton, (4 Burrow, 2015, 2016), that "the privileges of public ministers and their retinue depend upon the law of nations, which is part of the common law of England, And the act of Parliament of 7 Ann c. 12 did not intend to alter, nor can alter the law of nations." It was natural, therefore, that the statesmen of the Revolution should consider the law of nations as part of the common law. They had by ordinance of the Congress of December 4, 1781, relating to maritime captures professed obedience to the law of nations "according to the general usages of Europe." There was a very interesting case with which they must have been familiar, inasmuch as it happened in Philadelphia, then generally looked upon as the capital of the country, and as it involved the French minister plenipotentiary and the King of France it must have created a stir. In the case of Respublica v. De Longchamps, (1 Dallas, 111), decided in 1784, the defendant was indicted and convicted because, as stated in the indictment, on the 17th of May, "in the dwelling-house of his Excellency the French Minister Plenipotentiary, in the presence of Francis Barbe Marbois, unlawfully and insolently did threaten and menace bodily harm and violence to the person of the said Francis Barbe Marbois, he being Consul General of France to the United States, Consul for the state of Pennsylvania, Secretary of the French Legation, &c. resident in the house aforesaid, and under the protection of the law of nations and this Commonwealth."

1

The case was as interesting as it was novel. Mr. Chief Justice McKean,

Sir William Blackstone, Commentaries on the Laws of England, 1765 ed., Vol. II, P. 67.

before whom it was tried in Philadelphia stated that it was "a case of the first impression in the United States," and that “it must be determined on the principles of the laws of nations which form a part of the municipal law of Pennsylvania."

1

The gravity of the offense is indicated by the following sentence which the Chief Justice, on behalf of the court, pronounced as follows:

That you pay a fine of one hundred French crowns to the commonwealth; that you be imprisoned until the 4th day of July 1786, which will make a little more than two years imprisonment in the whole; that you then give good security to keep the peace, and be of good behaviour to all public ministers, secretaries to embassies, and consuls, as well as to all the liege people of Pennsylvania, for the space of seven years, by entering into a recognizance, yourself in a thousand pounds, and two securities in five hundred pounds each: that you pay the costs of this prosecution, and remain committed until this sentence be complied with.2

It was natural for Pennsylvania to indict and to sentence De Longchamps, inasmuch as the law of nations was a part of the common law, and the law, criminal as well as civil, was in force in Pennsylvania. There might have been some difficulty in regarding the law of nations as a part of the law of the United States; but that difficulty seems to have been obviated by section eight of the first article of the Constitution, authorizing in express terms the Congress "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." As nations have trouble enough in administering their domestic laws, without seeking to enforce within their limits foreign laws as such, the law of nations, therefore, became by this provision of the Constitution, by implication if not by express statement, the law of the land, This has been universally held from the first to the last decision of the Supreme Court, especially in the case of The Paquete Habana, (175 U. S. 677, 700), decided in 1900, in which Mr. Justice Gray, speaking for the court, said: "International law is a part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." As the law of the land it is the law of each State of the Union, as well as of the Union, and as such, it is administered in all courts, in all cases involving its principles.

The judicial power, therefore, extends to cases in law and equity, admiralty and maritime jurisdiction, and the law of nations.

XXII

IMMUNITY OF STATES AND NATIONS FROM SUIT

It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another State. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it. (Chief Justice Taney in Beers v. State of Arkansas, 20 Howard, 527, 529, decided in 1857.)

It is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public policy; the inconvenience and danger which would follow from any different rule. It is obvious that the public service would be hindered, and the public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government. The exemption from direct suit is, therefore, without exception. This doctrine of the common law is equally applicable to the supreme authority of the nation, the United States. They cannot be subjected to legal proceedings at law or in equity without their consent; and whoever institutes such proceedings must bring his case within the authority of some act of Congress. Such is the language of this court in United States v. Clarke, 8 Peters, 444.

The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried this case, there is no distinction between suits against the government directly, and suits against its property.

But although direct suits cannot be maintained against the United States, or against their property, yet, when the United States institute a suit, they waive their exemption so far as to allow a presentation by the defendant of set-offs, legal and equitable, to the extent of the demand made or property claimed, and when they proceed in rem, they open to consideration all claims and equities in regard to the property libelled. They then stand in such proceedings, with reference to the rights of defendants or claimants, precisely as private suitors, except that they are exempt from costs and from affirmative relief against them, beyond the demand or property in controversy. (Mr. Justice Field in The Siren, 7 Wallace, 152, 153-154, decided in 1868.)

While the United States as a government may not be sued without its consent, yet with its consent it may be sued, and the judicial power of the United States extends to such a controversy. Indeed, the whole jurisdiction of the Court of Claims rests upon this proposition. (Mr. Justice Brewer in State of Minnesota v. Hitchcock, 185 United States Reports, 373, 386, decided in 1902.)

Sec. 145. The Court of Claims shall have jurisdiction to hear and determine the following matters:

First. All claims (except for pensions) founded upon the Constitution of the United States or any law of Congress, upon any regulation of an Executive Department, upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable: Provided, however, That nothing in this section shall be construed as giving to the said court jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as war claims," or to hear and determine other claims which, prior to March third, eighteen hundred and eighty-seven, had been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same.

Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, That no suit against the Government of the United States, brought by any officer of the United States to recover fees for services alleged to have been performed for the United States, shall be allowed under this chapter until an account for said fees shall have been rendered and finally acted upon as required by law, unless the proper accounting officer of the Treasury fails to act finally thereon within six months after the account is received in said office.

Third. The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of loss by capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible. (The Judicial Code of the United States, 1911, 36 Statutes at Large, 1136.)