T
HIS action was commenced returnable to the enfuing term, and now, Auguʃt 6th, previous to the return of the write, the plaintiff moves for a ʃpecial court, under the new act, for granting ʃpecial courts to plaintiffs.—Lewis and Ingerʃol for the plaintiff—Wilʃon and Wilcocks for the defendant.the court denied the motion, the defendant not being in court, nor the action depending for this purpofe, till bail filed, or an appearance entered.
Ingerʃol in arguing on the expreffion in the laft act, ‘‘ actopm depending,’’ took this diftinction–Where the original writ is purchafed our of Chancery, the fuit cannot be faid to be depending until the return ; becaufe the writ gives the jurifdiction, and before the return, the court does not know the caufe.–This is the cafe
in
[♦]As the following cafe may give fome fatisfaction to our fifter ftates, I hope the infertion of it here, will not be deemed an improper deviation from my intention, to confine the reports of decifions in the Common Pleas, to thofe which have occurred fince the appointment of Mr. Preʃident SHIPPEN :–particularly, as I have reafon to believe, that the principle of this adjudication, met with the approbation of all the judges of the Supreme Court.
Common Pleas, Philadelphia County.
September Term, 1781.
Simon Nathan verʃus the Commonwealth of Virginia.
A foreign attachment was iffued againft the commonwealth of Virginia, at the fuit of Simon Nathan : and a quantity of cloathing, imported from France,
longing
1784.
in the Common Pleas in England–But where the original writ iffues out of the court, returnable into the fame court, as was the
cafe
belonging in the ftate, was attached in Philadelphia. The delegates in Congrefs from Virginia, conceiving this a violation of the laws of nation, applied to the fupreme executive council of Pennʃylvania, by whom the fheriff was ordered to give up the goods.
The council for the plaintiff, finding that the fheriff fuppreffed the writ, and made no return of his proceedings, obtained, September 20, 1781, a rule that the fheriff fhould return the writ, unlef caufe was fhewn.
They contended that the fheriff was a minifterial officer : that he could not difpute the authority of the court out of which the writ iffued, but was bound to execute and return it as his own peril. 6. Co. 54.
That thofe cafes in England, where the fheriff was not compelled to return writs iffued againft ambaffadors or their (illegible text), depended upon the ftat. 7. AUG. c. 12. which did not extend to this ftate.
The Attorney General, on the part of the fheriff, and by direction of the fupreme executive council,, fhewed caufe, and prayed that the rule might be difcharged.
He premifed, that though the ʃeveral ftates, which form our federal republic, had, by the confederation, ceded many of the prerogatives of fovereignty to the United States, yet thefe voluntary engagements did not injure their independence on each other ; but that each was a fovereign, ‘‘ with every power, jurifdiction, and right, not exprefsly give up.’’
He then laid down two pofitions. Firft : that every kind of procefs, iffued againft a fovereign, in a violation of the laws of nations ; and is in (illegible text) null and void. fecondly : that a fheriff cannot be compelled to ferve or return a void writ.
I. The firft point he endeavoured to prove, by confidering firft the nature of fovereignty ; and fecondly, the rules of law, relative to procefs iffued againft ambaffadors, the reprefentatives of foveregns.
He faid, that all fovereigns are in a ftate of equality and independence, exempt from each other's jurifdiction, and accountable to no power on earth, unlefs which their own confent.
That fovereigns, with regard to each other, were always confidered as individuals in a ftate of nature, where all enjoy the fame prerogatives, where there could be no fubordination to a fupreme authority, nor any judge to define their rights, or redrefs their wrongs.
That all jurifdiction implies fuperiority over the party, and authority in the judge to execute his decrees : but there could be no fuperiority, where there was a perfect equality–no authority, where there was an entire independence.
That the king of England, as fovereign of the nation, is faid to be independent of all, and fubject to no one but God : and his crown is ftated imperial, on purpofe to affert that he owes no bind of fubjection to any potentate on earth. No compulfory action can be brought againft him, even in this own courts.
That a fovereign, when in a foreign country, is always confidered by civilized nations, as exempt from its jurifdiction, privileged from arrefts, and not fubject to its laws.
Hence this inference was drawn, that the court having no jurifdiction over Virginia, all its procefs againft that ftate, muft be corum non judice, and confequently void. 1 Vatt. p. 2. 133. 2. Vatt. 158. I Blackƒt. 141. 5. Bac. 450.
It was then obferved, that there being no inftance in our law books, of any procefs againft a fovereign, it was proper to confider the rules of law relative to procefs againft their reprefentatives.
The ftatute of Ann was read, with the hiftory of the outrage that gave birth to it ; which act declares that all procefs againft the perfon, or goods, or domeftics of an ambaffador fhall be null and void, and all concerned in iffuing or serving it, fhould be punifhed as infractors of the laws of nations.
That his ftatute was not introductory (illegible text) any rule, but barely declaratory of the laws of nations. That here was nothing new in it, except the claufe perfscribing s fummary mode of punifhment. That it was a part of the common law of the land before, and confequently extended to Pennfylvania. 4 Blackƒt. 67. 3. Burr. 1480. 4 Burr. 2016.
1784.
cafe in the ftar-chamber, and is the cafe in this court, there it is his pendens from the purchafe of the writ—To this purpofe he
cited
Hence it was concluded that if procefs againft an ambaffador be null and void, a ƒortiori, fhall it be vid if iffued againft a fovereign.
That the true reafon of the minifter's exemption from procefs is the independence and fovereignty of the perfon he reprefents. And although by engaging in trade, he may fo far divert himfelf of his public character, as to fubject thefe goods to attachment, yet in every cafe where he reprefents his mafter, his property is fafted. But a fovereign cannot fubject himfelf by implication : he muft do it exprefsly.
That though the goods of a fovereign, as well as of an individual, might be liable for freight, or duites, or fubject to forfeitures ; yet in thofe cafes, there was a lien on the goods, they were anfwerable, and the procefs was in rem : in this cafe, it was in inperʃonam ; and the goods were attached merely to compel the party's appearance to anfwer the plaintiff's demand. And no fovereign would fubmit to the indignity of doing this.
Hence it was inferred that the writ was a mere nullity.
H. Upon the fecond point, authorities were read to explain the cafe produced by the plaintiff's council, and to fhew a diftinction between an erroneous and a void writ. That the fheriff was bound to execute and return the writ, although erroneous, if the court had jurifdiction. But when the court had no jurifdiction, the writ was void, and the fheriff was a trefpaffer if he dared to obey it ; a void authority being the fame as none. That in England, the fheriffs were never obliged to return a writ, if upon fhowing caufe, it appeared that the defendant was a public minifter, or one of his domeftics. 5 Bac. 48x. Salk. 700. 2. Barnes. 1 Wils. 20.
That fuppreffing the writ was not making the fheriff judge, becaufe he was obliged to affign a reafon for fo doing : and on the legality of that reafon the court was now to determine.
He added, that if the fheriff had attached the goods, he was liable to punifhment, and to compel him to return his proceedings, was to obliged him to put his offence upon record, and to (illegible text)teftimony againft himfelf.
He finally obferved, that the writ was void, or it was not. If void, the fheriff need pay no attention to it : if not void, he was obliged to execute it at all events ; and if fo, thefe inconveniencies would follow. That say difaffected perfon, who happened to be a creditor of the United States, might injure our public defence, and retard or ruin the operations of a campaign ; that he might iffue an attachment againft the cannon of General Wafhington, or fieze the public mney defigned for the payment of his army. That the ftatues united or feveral, would never fubmit to put in fpecial bail (which muft be done to prevent judgment) and to anfwer before the tribunal of a fifter ftate.
That the plaintiff was under no peculiar inconvenience. Every creditor of this ftate or of the United States lay under the fame. If his demand was juft, Virginia would, upon application, do what was right ; if not, and flagrant injuftice was done him, he might (if a fubject of this ftate, and entitled to its protection) complain to the executive power of Pennfylvania.
He concluded with obferving on the importance of fuppreffing fuch meafures as the prefent, at their firft appearance, and of preferving the rights of fovereign ftates inviolate– and prayed that the rule might be difcharged.
The counfel for the plaintiff infifted, that though Virginia was a fovereign ftate, yet this ought not to exempt her property in every cafe from the laws and jurifdiction of another ftate. That fovereignty fhould never be made a plea in bar of juftice : and that the true idea of prerogative, was the power of doing good, and not, as it had fometimes been expreffed, ‘‘ the divine right of doing ill.’’
That every perfon, and all property within this ftate, was fubject to its jurifdiction, by fo being within it, except a fovereign power, and the reprefentative of a fovereign power, with his domeftics and effects, which he holds as reprefentative.
That if an ambaffador engages in trade, his property fo engaged is liable to attachment, V(illegible text) R. IV ƒact. 114. and (illegible text) fovereign ftate turns merchant, and (illegible text) accepts bills of exchange, its property ought in like manner to be (illegible text)
1784.
cited 15 Vin. Abr. 127. pl. 3.5. 6.8. Cro. Eliz. 675. 5 Rep. 47. 6. 48. a. 1. Vorn. 318. 3 Black. Comm. 316. See 10 Vin. Abr. 498. pl. 9.
HUNTER'S
to the law merchant, and anfwerable in the ftate where it happens to be imported.
That fovereignty is better reprefentted by perfons than things: and as any or all the citizens of Virginia would be amenable to the jurifdiction of this ftate, if they were to come within its bounds, fo there is no reafon why property brought here fhould not be attached as well as the citizen arrefted.
That one fovereign may lay duties upon the goods of another ; and this appears to have been the fenfe of Congrefs, by their exprefsly ftipulating in the articles of confederation, that no duties fhould be laid by one ftate, on the property of another.
That the goods, which were attached, were certainly liable for their freight : fo if they had been imported contrary to law, they were fubject to forfeiture : procefs againft them might iffue out of this court, and jurifdiction over them be exercifed, the fovereignty of Virginia not withftanding.
That if a veffel belonging to Virginia, fhould be taken, as prize retaken, and (illegible text) here, Virginia muft fubmit her claim to the decifion of the admiralty of Pennʃylvania, and could not claim an exemption, on account of her fovereignty.
That a fovereign ftate may wave its right–and by the very act of importing merchandise, it fubjects itfelf to the jurifdiction of the country.
That all property in this ftate is under the protection of the government, and therefore fhould be anfwerable is its turn, and amendable to its laws.
That the ftatute of Ann, though declaratory, is only declaratory of the ideas which that parliament entertained of the laws of nations. Thefe were often erroneous, and could not be binding on us.
That whatever might be the cafe with regard to foreign minifters, by the articles of confederation, the delegates from Virginia were privilege only in their perfons, and not in their goods : and as they reprefent the ftate, it was to be prefumed, they enjoy ever exemption that their fovereign expected or claimed.
They faid, that whether Virginia was fubject to, or exempt from, the jurifdiction of this ftate, in the prefent inftances, was not the point now in queftions it was only, whether the fheriff fhould or fhould not obey the command of the court.
That by the writ, he was directed to return it to the court, and he was not to withhold the procefs in contempt of this order, and to ftate the proceedings in their birth.
That the fheriff was to act under the judgment of the court, and if he had any doubt about the validity of the writ, he ought to return it. Then the court might, if caufe was shewn, quafh it as illegal.
That his not being obliged to return procefs againft ambaffadors was owing to the ftatute of Ann: and this exemption was fingular, and not to be extended here.
That though a writ might be void, where the court had no juridiction of the caufe, of iffued a writ, which they had no authority to iffue ; yet the caufe here was trefpafs upon the cafe, of which the court may hold plea, and the procefs was a foreign attachment, which they certainly had authority to iffue.
That to fuffer the fheriff to fupprefs writs at pleafure, was eftablifhing a dangerous precedent, which in future would be greatly abufed.
That the queftions upon which this cafe depended, were important, and deferved the fullest confideration : and that an appeal from one tribunal to another, was the right and the fecurity of the fubject. But if the writ was now to be funpreffed, there could be no record to be removed, and the plaintiff was left, without remedy.
They finally obferved, that this mode of applying to a court of judicature, to decide on the juftice of the plaintiff's demand, was every way preferable to that propofed by the attorney general, of fending him to complain to the executive power, who could give him no redrefs, but by appealing to arms, and involving this ftate in a war.
They therefore prayed that the rule might be made abfolute.
the court held the matter fome days under advifement–and at their next meeting , the president delivered it as the judgment of the court.
"That the rule (illegible text) upon the fheriff, to return the writ iffued againft the commonwealth of Virginia, at the fuit of Simon Nathan, fhould be difcharged.
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