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The Republic of Mexico agt. Arrangois and others

been fully settled and sustained. In the case of The King of Spain agt. Machado, (4 Russell, 560, & 1 Bligh U. S. 60,) Lord REDESDALE Speaks of it as one of the clearest cases that could be stated: "that he sues as a sovereign, either on his own behalf, or on behalf of his subjects." (See also The Nabob of the Carnatic agt. The East India Company, 1 Vesey, jr., 371; The King of Hanover agt. Wheatley, 4 Beavan, 78; Hullett agt. The King of Spain, 2 Bligh U. S. 31, and 1 Clark and Finelly, 33.)

It will be seen, that in all the English cases in which the right to sue has been admitted, the plaintiff was a monarch, and was treated as an individual. The case of The City of Berne agt. The Bank of England, (9 Vesey, 348,) was decided upon the point of the state not having been recognized by the British government. It is also to be noticed that the bill was by a common councilman, on behalf of himself and his associates in the government. This appears from the report of the case of Dolder agt. The Bank of England, (10 Vesey, 353;) and in Dolder agt. Hunting field, (11 Vesey, 283,) the suit was by individuals describing themselves as Llandamman and two Statholders of the Helvetic Republic, in whom the executive power was vested by the constitution.

When the case of The King of Spain agt. Machado was first before the court, it was held that two persons, the agents of the king, and to whom he had given a power of attorney to collect and deposit the funds, but who had no interest in the amount, could not be joined with the king as co-plaintiffs. (4 Russell's Rep. 225.)

The case of The Colombian Government agt. Rothschild, (1 Simon's Rep. 103,) is of importance in ascertaining the English rule, not merely because it was decided by a very able judge, (Sir JOHN LEACH,) but that it has received the sanction of Lord ELDON, Lord REDESDALE, and Lord BROUGHAM. (Compare the report in the house of lords in 1 Dow. & Clark, with that in 1st Clark & Finelly, 33.)

The bill was, in form, by the government of the state of Colombia, and Don Manuel T. Hutado, a citizen of such state,

The Republic of Mexico agt. Arrangois and others.

and minister plenipotentiary from the same to the court of his Brittanic majesty, the place of his residence stated. On general demurrer, it was held that the bill could not be sustained. The vice-chancellor said, that a foreign state is as well entitled to the aid of the court, in asserting its rights, as any individual; but it must sue in a form which makes it possible for the court to do justice to the defendants. It must sue in the name of some public officers, who are entitled to sue in the name of the state, and upon whom process can be served on the part of the defendants, and who can be called upon to answer a cross bill. The general description of the Colombian government precluded the defendants from these just rights, and no instance could be stated in which the court had entertained the suit of a foreign state, by such a description.

The English authorities appear to settle these points. That the sovereign of a foreign country may sue in the tribunals of the realm, but he sues as an individual. An action cannot be sustained in the name of his agent, although they may be regularly empowered to act in the identical business. He is the party in interest. He must swear to an answer to a cross bill, if one is required. He would be the party to be examined personally, whenever such an examination was warranted by the rules of the court.

Again: If a state sues, without the individuality of a monarch, some public officer representing it must be upon the record; and it seems that a minister plenipotentiary is not such an officer.

I cannot but think that an examination of the old cases, referred to by counsel in The Nabob of the Carnatic agt. The East India Company, will tend to prove that an ambassador may sustain an action on behalf of his sovereign, notwithstanding the doubts of Lord RossLYN upon the subject. (3 Vesey, 431.)

In The King of Spain agt. Oliver, (1 Peter's C. C. Rep. 217, 276,) an action for the recovery of duties, alleged to be payable to the crown, was brought in the circuit court, and decided upon its merits. It appears that an application was made for

The Republic of Mexico agt. Arrangois and others.

a continuance, to take testimony under a commission, upon the affidavit of the Spanish minister.

These are all the authorities I have been able to find upon the subject; and I believe the question is entirely new in our country. The principle which pervades the English cases is marked by that spirit of equality and justice which is the, inmate of English tribunals, and that principle places the sovereign and the peasant upon the same footing.

But the reason of the English rule lies deeper. It has its origin in that leading doctrine of European policy which, in the language of Guizot, places "the personification of the state in the institution of monarchy." This embodiment of the commonwealth in the individual has given way, over the continent of America, to the idea of the concentration of the power of the people in an abstraction. Legitimate sovereignty does not find its representative in a king with his personality, but in a republic with its idealism.

Still there is the same brotherhood and communion of states to be recognized. The same family of nations, though with different names and different forms, exist; and their rights, and their responsibilities, must be forever the same. The catholic law of nations is identical in its application to all.

We must then admit these recognized governments to sue in our courts under their federative title, and adapt our forms of proceeding, if possible, so as to do justice to all parties; or we must allow an individual representative, clothed with competent authority from his government, to act on its behalf, and thus have a party on the record who can be strictly subjected to those forms.

In my opinion, the action can be maintained in the name of the republic as an aggregate body; and the modes of proceeding in cases of foreign corporations, and of other states of the union may be resorted to for the regulations of the practice.

Before the Revised Statutes had embodied the law into an express provision, Chancellor KENT had decided that a foreign corporation could file a bill in our court of chancery, as well as sustain a suit at law. (Silver Lake Bank of Pennsylvania agt.

The Republic of Mexico agt. Arrangois and others.

North, 4 John. C. R. 371.) Such a suit was brought in this court in The Holyoke Bank agt. Hastings, (4 Sandf. Rep. 675.)

Our highest court has also settled, that either of the states of the Union may sue in our state courts; and difficulties of practice are not found insuperable. (State of Illinois agt. Delafield, 2 Hill, 159; 8 Paige, 527; State of Indiana agt. Woram, 6 Hill, 36.)

With these views, I consider that the objection to the undertaking is not tenable. The language of the Code admits of the court treating an undertaking, signed by an admitted agent of a foreign government appointed to sue, to be an undertaking on the part of the plaintiff. In the case of Richardson agt. Crary, (1 Duer, 666,) referred to by the counsel of the defendant, the instrument was executed by sureties alone; neither by the plaintiff nor by any one on his behalf.

2d. The question, whether the defendant filled any, and what office under his government, and the time of the execution of. these services, is next to be considered. It becomes of importance in any view of the application.

In the affidavit of General Almonte, on which the order of arrest is founded, it is alleged that, at the time of the reception of the monies mentioned, the defendant was an officer and agent of the republic, having, as such, a salary of $3,000 per annum; that he acted in the business only as an officer or agent having a stated salary; and that the defendant, after receiving the money, resigned his office and employment. The affidavit avoids stating what that office was.

In the letter from the office of secretary of state, and of the department of foreign relations, dated July 17th, 1854, regulations are prescribed as to the salaries of consuls, and the minister plenipotentiary directed to carry them into effect. In pursuance of these instructions, General Almonte addressed an official letter to the defendant, under date of the 2d of August, 1854, asking information as to his salary, and entitling him, "The Consul General of the Republic," &c., &c.

On the 8th of August, 1854, the defendant signs a receipt for his salary, as Consul General in the United States, for one

The Republic of Mexico agt. Arrangois and others.

year in advance; on the 4th of August the treaty money was paid to him.

In two of the series of letters addressed to the defendant from the various departments of the government, dated the 19th of July, 1854, and empowering him to receive the money, he is addressed as "Consul General of the Republic in the United States."

This is the case upon the documents, apart from the defendant's affidavit. It follows from them that the defendant was, at the time of his employment and agency, the Consul General of the republic of Mexico, and continued so until the 8th of August. It is manifest, that if he was not Consul General, he was not acting, at the time of such agency, in any other station as an officer on a salary. It is also clear, that if he remained Consul General at the commencement of this action, the court has not any jurisdiction of the cause.

The doubts heretofore existing as to the operation of the act of congress of September 24, 1789, are terminated by the decision in the court of appeals in Valarino agt. Thompson, (3 Selden's Rep. 576.) It is there settled, not merely that a consul does not lose his exemption by reason of omitting to plead it, but that the ground of his exemption from a suit in a state court is not a personal privilege, nor even the right of his sovereign; but that it is the right and privilege of the United States that he should be sued in the federal courts. Under an admitted constitutional power, the state courts are excluded from jurisdiction. The case of Flynn agt. Stoughton, (5 Barb. S. C. Rep. 113,) is then over-ruled.

In this view, the importance of the plaintiff's allegation, that he resigned the office which he had held after the reception of the money is apparent. The receipt of the 8th of August, four days after the money was paid to him, speaks of his salary as consul being paid in advance. The Mexican minister, on the 2d of August, addresses him as Consul General. I should not know how to resist the presumption that he continued such consul to the present hour, if his own affidavit does not remove

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