A Plaintiff a Degree of particular consignment of 1365 bales of cotton had been received in Liverpool after the collapse of the Confederacy, and the United States filed its bill in the court of chancery, praying to have the cotton delivered to its agents and for an injunction and receiver. Leaving out the very interesting points discussed in the argument and decision of this case, it is sufficient for present purposes to state that the court decreed that the United States was entitled to the cotton by the law of succession, and that it was therefore the property of the United States government, but that it must take it subject to the obligations entered into respecting it by the de facto Confederate government. The defendant, Prioleau, was therefore appointed receiver, with power to sell the cotton; but he was properly required to give security for its value beyond £20,000, that being the amount of the defendant's lien (2 H. & M., 559). If the matter had ended here, this case would not be cited, as we are dealing with States not as plaintiffs but as defendants, for it is universally admitted that a sovereign can sue. We say, off-hand, that one story is good until another is told. The same is true in courts. The case of the United States was clear until Prioleau told his story, which he did by filing a crossbill to obtain discovery from the United States, as a private suitor would be required to give under the circumstances. Therefore, in the second phase of this case, entitled Prioleau v. United States and Andrew Johnson (2 Law Rep., Eq., 659), decided in 1866, Vice-Chancellor Page Wood, later Lord Chancellor Hatherley, held that the United States, suing in an English court, subjected itself to the jurisdiction of the Court; that it stood in the same position as a foreign sovereign, and that it could only obtain relief subject to the rules of practice of the court in which it sued, according to which every suitor, be he a private suitor, a foreign sovereign, or a corporate body, is entitled to discovery upon oath concerning the matters of the suit, and to file a cross-bill for the purpose of obtaining such discovery. Proceedings were therefore stayed in the case of Prioleau v. The United States, suing in its corporate capacity, until an answer should be put in to the cross-bill of the defendant. In the course of his decree, Vice-Chancellor Wood intimated that a demurrer should have been filed to the bill of the United States in that cause, as no public officer was put forward as representing its interests or who could be called upon to give discovery upon the cross-bill. Taking advantage of this decision, in the case of United States v. Wagner (2 Law Rep., Chancery App. Cases, 582), decided in 1867, the defendant, Wagner, demurred to the bill, praying that an account be taken of the moneys, goods and ships which had come into the possession of the defendants and which were claimed by the United States as successor to the Confederacy, on the ground that it should have put forward the President of the United States or some other official of that Government upon whom process could be served by the defendants and who might answer to the cross-bill. The demurrer was allowed by Vice Chancellor Wood, but from this decree the plaintiffs appealed. In the course of very interesting individual opinions, it was held by Lord Chancellor Chelmsford and the great Lord Cairns, destined shortly to succeed him as Lord Chancellor, that a foreign State adopting the republican form of government can sue in the courts of Great Britain in its own. name; that such a State is not bound to sue in the name of any officer of the Government or to join as co-plaintiff any official of the Government, or to join as co-plaintiff any other official upon whom process may be served and who may be called upon to give discovery upon a cross-bill; but that the court may stay proceedings in the original dispute until the means of discovery are secured in the cross suit. In what may be called the third and final phase of this suit, for although the three were separated in form they were related in fact, United States of America v. McRae (8 Law Rep., Eq., 69), decided in 1869, Vice Chancellor James thus disposed of the entire matter, for the reasons briefly stated in the head-note to the case: Upon the suppression of a rebellion, the restored legitimate government is entitled, as of right, to all moneys, goods, and treasure which were public property of the government at the time of the outbreak; such right being in no way affected by the wrongful seizure of the property by the usurping government. But with respect to property which has been voluntarily contributed to, or acquired by, the insurrectionary government in the exercise of its usurped authority, and has been impressed in its hands with the character of public property, the legitimate government is not, on its restoration, entitled by title paramount, but as successor only (and to that extent recognising the authority) of the displaced usurping government; and in seeking to recover such property from an agent of the displaced government can only do so to the same extent and subject to the same rights and obligations as if that government had not been displaced, and was itself proceeding against the agent. Therefore, a bill by the United States government, after the suppression of the rebellion, against an agent of the late Confederate government, for an account of his dealings in respect of the Confederate loan, which he was employed to raise in this country, was dismissed with costs; in the absence of proof that any property to which the Plaintiffs were entitled in their own right, as distinguished from their right as successors of the Confederate government, ever reached the hands of the Defendant, and on the Plaintiffs declining to have the account taken on the same footing as if taken between the Confederate government and the Defendant as the agent of such government, and to pay what on the footing of such account might be found. due from them. The Further Renunciation of Immunity from Suit by a Sovereign Power From these cases, purposely chosen from a foreign jurisdiction, it appears that a foreign State may freely sue, but that, in doing so, it waives its sovereignty as such for the purposes and to the extent of the suit; that it can only claim rights against the defendant accorded to a private suitor; that it must recognize the rights of the defendant according to the laws of the country in which the suit is brought and that it may be made a defendant in a cross-bill or other action springing out of the transaction. It is interesting to note in this case, that the illustrious plaintiff, having failed to comply with the local law of which it sought the benefit, was taxed in costs as any other unsuccessful or unwilling litigant. In view of the fact that a sovereign waives its immunity by appearing as plaintiff in a court of justice, and of the further fact that in asking justice, it is obliged to do it at the instance of a defendant, the question arises whether a State, stepping down from the pedestal of a sovereign by engaging in industry or trade, may not, because thereof, be held to renounce its immunity from suit and subject itself to suit as a corporation or private person would be subjected in like circumstances. This question has been much discussed, and must be decided if the State as such is, in the future as in the past, to enter into competition with its subjects or citizens in the ordinary business of life. Thus, in Bank of United States v. Planters' Bank of Georgia (9 Wheaton, 904, 907-8) decided as long ago as 1824, Mr. Chief Justice Marshall said: It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted. Thus, many States of this Union, who have an interest in Banks, are not suable even in their own Courts; yet they never exempt the corporation from being sued. The State of Georgia, by giving to the Bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character, so far as respects the transactions of the Bank, and waives all the privileges of that character. As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act. The government of the Union held shares in the old Bank of the United States; but the privileges of the government were not imparted by that circumstance to the Bank. The United States was not a party to suits brought by or against the Bank in the sense of the constitution. So with respect to the present Bank. Suits brought by or against it are not understood to be brought by or against the United States. The government, by becoming a corporator, lays down its sovereignty, so far as respects the transactions of the corporation, and exercises no power or privilege which is not derived from the charter. We think, then, that the Planters' Bank of Georgia is not exempted from being sued in the federal Courts, by the circumstance that the State is a corporator. But, in national as well as in international law, the United States is not subject to suit without its consent, either at the instance of a citizen or subject, of a foreign citizen or subject, or of a foreign State or nation; but, by the Constitution of the United States, State may sue State, and has often done so. As originally drafted and as construed by the Supreme Court, a citizen of one of the States could sue another State of the Union; but its exercise in the case of Chisholm v. Georgia (2 Dallas, 415), decided in 1793, led to the passage of the 11th Amendment, to the effect that the judicial power of the United States should not extend to such a suit. The United States may sue a State of the American Union. The United States are, for purposes of suit, regarded as a State within the meaning of the Constitution, as solemnly adjudged in United States v. Texas (143 U. S., 621), decided in 1892; but it is equally well settled that the Government of the United States is not made by the Constitution suable, without express consent, by State or citizen. However, by various acts of Congress, the Federal Government has consented to be sued, in a limited category of cases, in the Court of Claims, created in 1855 for this purpose. These acts are in terms broad enough to include States as well as private persons. As amended in 1912, they thus define and state the jurisdiction of the present Court of Claims: 1 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 laws 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. . 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.2 For collection of cases, see J. B. Scott, Judicial Settlement of Controversies Between States, 2 vols. XXIII A MORE PERFECT SOCIETY OF NATIONS It is a favourite maxim of mine that history, while it should be scientific in its method, should pursue a practical object. That is, it should not merely gratify the reader's curiosity about the past, but modify his view of the present and his forecast of the future. (Sir John R. Seeley, The Expansion of England, American edition, 1883, p. 1.) To be right, to set for the world a standard of true liberty and true justice: that is the great mission of democracy! . It is for us whose lives are cast in such lines that we can see and feel the difference between that high function and the ordinary things of life, to teach our friends and neighbors the secret of the great judgment of our free democracy, that they may reverence it and preserve it always. (Elihu Root, The Spirit Which Makes a Nation Live, Addresses on Government and Citizenship, 1916, pp. 500-502.) We wish for no victories but those of peace; for no territory except our own; for no sovereignty except sovereignty over ourselves. We deem the independence and equal rights of the smallest and weakest member of the family of nations entitled to as much respect as those of the greatest empire; and we deem the observance of that respect the chief guaranty of the weak against the oppression of the strong. We neither claim nor desire any rights or privileges or powers that we do not freely concede to every American republic. We wish to increase our prosperity, to expand our trade, to grow in wealth, in wisdom, and in spirit; but our conception of the true way to accomplish this is not to pull down others and profit by their ruin, but to help all friends to a common prosperity and a common growth, that we may all become greater and stronger together. (Elihu Root, Address to the Third Conference of the American Republics at Rio de Janeiro, July 31, 1906, Latin America and the United States, 1917, p. 10.) There are no international controversies so serious that they cannot be settled peaceably if both parties really desire peaceable settlement, while there are few causes of dispute so trifling that they cannot be made the occasion of war if either party really desires war. The matters in dispute between nations are nothing; the spirit which deals with them is everything. (Elihu Root, Address at the Laying of the Corner Stone of the Building for the Pan American Union, Washington, May 11, 1908, in Latin America and the United States, 1917, pp. 230-231.) It is the proper end of government to reduce this wretched waste to the smallest possible amount, by taking such measures as shall cause the energies now spent by mankind in injuring one another, or in protecting themselves against injury, to be turned to the legitimate employment of the human faculties, that of compelling the powers of nature to be more and more subservient to physical and moral good. (John Stuart Mill, Principles of Political Economy, 1848, Vol. 2, p. 560.) |