from the authorities that every State declined to exercise by means of any of its Courts territorial jurisdiction over the person of the Sovereign or ambassador of any other State, or over the public property of any State which was destined to its public use, including its public vessels, or over the property of any ambassador; even though such Sovereign, ambassador, or property might be within its territory. It was held, moreover, that in such cases the immunity so established could not be defeated by the adoption of proceedings in rem, directed merely against the property; for the reason that by such proceedings the owner of the property was nevertheless indirectly impleaded to answer to and affected by the judgment of the Court. The effect of such a proceeding against the property of a foreign Sovereign was, in fact, to call upon him either to sacrifice his property or his independence; and to place him in that position was virtually a breach of the principle upon which his immunity from jurisdiction was based.

The second question was whether such immunity had been lost by reason of the ship having been used for trading purposes. As to this, it must be maintained either that the ship had been so used as to have been employed substantially as a mere trading ship, and not substantially for national purposes; or else that a use of her in part for trading purposes took away the immunity, even though she remained in the possession of the sovereign authority by the hands of commissioned officers and was substantially in use for national purposes. As to the first of these contentions, the ship in the present case had been declared by the Sovereign of Belgium to be in his possession, and to be a public vessel of the State. It was difficult to see how any Court could inquire into the correctness of such a declaration without bringing the Sovereign under its jurisdiction. It has been held, moreover, in the case of the "Exchange" (n), under very trying circumstances, that if a ship were declared by the sovereign authority by the usual means to be a ship of war, that declaration could not be inquired into; and the question whether a public ship, not being a ship of war, was used for national purposes appeared to come within the same rule. But, even if such an

(n) Supra, p. 261.

inquiry could be instituted, it seemed to the Court in the present case that the ship had been mainly used for the purpose of carrying the mails and only subordinately for trading purposes, and hence that she did not fall within the first contention. As to the second, it had been frequently stated that an independent Sovereign could not be sued personally, even though he might have carried on a private trading venture; and the same rule applied to an ambassador; for the reason that in either case such a suit would be inconsistent with the independence and equality of the State which such Sovereign or ambassador represented. In the present case, however, it appeared to the Court that the ship had been used only subordinately and partially for trading; and that this did not take away her general immunity.

This case serves to show that, from the point of view of the English Courts, the fact of a vessel belonging to a foreign Sovereign having been used subordinately for trading purposes will not forfeit her right to treatment as a public vessel. In spite, however, of some expressions used in the judgment-which on the facts as found were not necessary to the decision-it would seem on principle that if such a vessel were used wholly as a trading vessel, and had passed out of the possession and control of the Sovereign, then this privilege would no longer avail; for the reason that the Sovereign in such a case must be deemed to have voluntarily abandoned for the time being her "public" character, whether as an instrument of State or as property. At the same time, the effect of this is somewhat qualified by the rule that, on the question of "public" character, the declaration of the foreign Sovereign will ordinarily be treated as conclusive (o). So, in the subsequent case of The Jassy (1906, P. 270) it was held that process by way of arrest, in an action in rem for damage, would not lie against a vessel belonging to a foreign sovereign State (Roumania) and destined to its public use; and that upon an application by its Government and the production of a certificate from the Foreign Office as to its public character all proceedings would be stayed. It was further held that the fact of the local agents of the ship having under a misapprehension, and in order to procure her release, entered an absolute appearance did not constitute a submission to the local jurisdiction. So, too, in The Gagara [1919] P. 95, the Court refused jurisdiction on the statement of the AttorneyGeneral that the Government had recognised the National Esthonian Council as a de facto independent Government.

The law as laid down in The Parlement Belge was also followed in The Porto Alexandre [1920] P. 30, where it was held by the Court of Appeal, affirming Hill, J., that a sovereign State could not be impleaded

(0) But see p. 271, infra.

either by being served in personam or indirectly by proceedings against its property, and if that were the principle it mattered not how the property was being employed. In this case the vessel (formerly Germanowned) was being employed in ordinary trading voyages, earning freights for the Portuguese Government, by which she had been requisitioned.

(iii) PERSONS ON BOARD PUBLIC VESSELS.

66
THE SITKA."

[1855; Opinions of U.S. Attorneys-General, vii. 122.]

Case.] IN 1856, during the Crimean War, the "Sitka," a Russian ship, was captured by a British man-of-war, and brought into San Francisco, with a prize crew on board. An application for a writ of habeas corpus was made to the Californian Courts on behalf of two prisoners on board for the purpose of trying the validity of their detention; and the writ having been issued, was thereupon served on board the "Sitka." This proceeding, however, was ignored by the commander of the " Sitka," who got under way and left the port with the prisoners on board.

Opinion.] The United States Government being in doubt as to whether a cause of complaint had not arisen against Great Britain, the opinion of Mr. Cushing, the Attorney-General of the United States, was taken on the question. In his opinion Mr. Cushing pointed out that judicial decisions had settled the point that, except where there had been a violation of its neutrality, as in the case of the "Santissima Trinidad," the Courts of a neutral State had no jurisdiction to decide on the validity of a capture made by a belligerent. He also pointed out that the Courts of the United States had adopted almost unequivocally the doctrine that a public ship of war of a foreign Sovereign at peace with the United States, coming into her ports and demeaning herself in a friendly manner, was exempt from the jurisdiction of the country and remained a part of the territory of her Sovereign. The ship in the present case, therefore, must be regarded as a part of the territory of the Sovereign into whose possession she had passed; and as this was threatened with invasion by the local Courts, it was not only lawful, but highly

discreet, in the captain to depart, and thus avoid unprofitable controversy.

This case is cited as illustrative of the rule that in the case of a public vessel not only is the vessel herself exempt from the local jurisdiction when within the Courts of another State, but that no process emanating from the local Courts can be served on board her, in relation either to her officers or the members of her crew or other persons on board. It is true that in the present case the vessel was only a prize, which is not strictly entitled to the privileges of a public vessel, and which, moreover, is in certain circumstances, as where it has been captured in violation of the local neutrality, admittedly subject to the local jurisdiction (00). Nevertheless, even a prize, if permitted to enter foreign ports or harbours, will in other respects share the privileges of a public vessel, as being the public property and under the control of the captor State. And the opinion is given, as will be seen, on the basis of the Sitka" constituting a part of the territory of the State to which she belonged, in the same way as if she had been a public vessel. Hence the principle enunciated may be taken to apply to public vessels generally. In certain earlier cases, indeed, both in 1794 and 1799, a different view appears to have been entertained by the legal advisers of the United States Government (p). But this was before the decision of the Supreme Court in the case of The Exchange v. McFaddon (supra), and also before the general usage on this subject had taken on its present shape. At any rate, the opinion given in the case of The Sitka appears to represent the modern and true view of the matter; although it needs to be taken subject to certain qualifications which attach in time of war, and which will be more fully considered hereafter (q).

GENERAL NOTES.-What constitutes a "Public Vessel."-A public vessel is one owned and commissioned by the Government of a Sovereign State; or even, it seems, by the Government of a semi-Sovereign State, so long as the latter is recognised externally as a separate international person (r). In the category of public vessels are included not only ships of war, but also unarmed Government vessels, store ships, and transports. The view adopted by the English Courts that a subordinate or partial use of a public vessel for trading purposes, so long as she remains under the control of the State to which she belongs and in charge of its officers, will not disentitle her to the privileges of a public vessel (8), would probably be followed by the Courts of other States. It is also necessary to bear in mind that the public property of one

(00) Infra, vol. ii.

(p) See Wharton, Dig. i. 138; Opn. U.S. A.-G. i. 47, 87 et seq.; and for modern opinions seemingly based on these earlier conclusions, Kent (Abdy), 371; and Phillimore, i. 482.

(q) Infra, p. 274; and vol. ii. sub nom. Neutrality.

(r) See The Charkieh (L. R. 4 A. & E. at 77).

(s) Supra, p. 268.

State, whatever its character, is, when within the territorial limits of another State, regarded as exempt from local jurisdiction, irrespective of its constituting an instrumentality of the State (t).

Proof of Character.--The public character of a vessel is primarily evidenced by her flag and pendant; or, in cases of doubt, and as a matter of courtesy, by the word of honour of the commander. But the ultimate proof is to be found in the commission issued by the Government of the State to which she belongs (u); and a fortiori in the direct declaration or attestation of that Government itself (x). If, however, the question should not be one of privilege or exemption from the local jurisdiction, but one of international responsibility for the acts of such a vessel, then it seems that a denial by a State of the public character of a vessel whose conduct is in question will not always be conclusive, and that responsibility may be inferred from facts showing continued control for State purposes (y). At the same time, in cases where the question of the public character of a foreign vessel is raised before a municipal Court it is usual to accept a certificate from the political or executive department as conclusive, in the same way as on the question of the status of a foreign Sovereign (z).

The Legal Position of a Public Vessel whilst in Foreign Ports or Territorial Waters.-A public vessel whilst merely passing through the territorial waters of a foreign State in time of peace is altogether exempt from territorial jurisdiction. When stationary or hovering in such waters her position will be the same as when in a foreign port (a). Even when in a foreign port she is, for the most part, exempt from local control and from the local jurisdiction; this being, as was pointed out by Marshall, J., in the case of The Exchange, a condition implicitly annexed to her reception or admission. Nevertheless, she is subject to certain obligations binding in comity; any neglect on her part may afford ground for remonstrance, or for the expulsion of the vessel, or for a demand of satisfaction urged diplomatically, as occasion may require. In time of war, moreover, the public vessels of a belligerent are subject to certain exceptional limitations and restrictions, which are referred to below (b). The more particular applications of the general principle of exemption are as follows: A public vessel is not liable for local dues, such as harbour or light dues, or to inspection by customs officers (c). The vessel herself is not subject to the local law, or to legal process issuing out of the local Courts at any rate beyond the point at which her claim to the public character is duly attested. Hence she cannot be seized for debt or damage (d); nor can salvage be enforced against her; and a similar exemption attaches to her boats and

(t) Supra, p. 92; see also Briggs v. Light Boats (11 Allen, 157; Scott, 225); Hall, 211.

(u) The Santissima Trinidad (7 Wheat. 283; Scott, at p. 702).

(x) The Pariement Belge.

(y) For illustrations of this, see Hall, 173.

(a) Supra, p. 153.

(b) Infra, p. 263.

(c) Although Great Britain apparently still claims to exact an account of goods on board and to search if necessary; see Customs Consolidation Act, 1876, s. 52.

(z) See Mighell v. Johore (supra, 39. p. 94).

(d) The Constitution (1879), 4 P. D.