[HIGH COURT OF ADMIRALTY]

THE CHARKIEH. (6200.)

Jurisdiction of the Court to entertain a Suit of Damage instituted against a Vessel belonging to the Khedive of Egypt - Sovereign Prince - Maritime Lien - Proceedings in Rem - Waiver of Privilege.

In a cause of damage instituted by the owners, master, and crew of the Batavier against the vessel Charkieh and her freight, an appearance under protest was entered on behalf of His Highness the Khedive of Egypt and his Minister of Marine. A petition on protest was filed on their behalf, stating that the Charkieh was the property of the Khedive as reigning sovereign of the state of Egypt, and a public vessel of the government and semi-sovereign state of Egypt, and concluding with a prayer to the Court to declare that the vessel was not liable to arrest. It appeared from the answer filed on behalf of the plaintiffs, and from evidence which was adduced at the hearing of the petition on protest, that the Charkieh, though carrying the flag of the Ottoman navy, had come with cargo to England and had been entered at the Customs like an ordinary merchant ship, and that, at the time of the collision, which happened in the Thames, she was under charter to a British subject and was advertised to carry cargo to Alexandria:-

The Court held that the Khedive was not entitled to the privilege of a sovereign prince, and pronounced against the protest:-

Semble, that a suit in rem to enforce a damage lien may be entertained without any violation of international law, though the owner of the res be the sovereign of a foreign state, and that such a suit may possibly be entertained even against property connected with the jus coron¾:-

Semble, that if a sovereign assumes the character of a trader, and sends a vessel belonging to him to this country to trade here, he must by considered to have waived any privilege which might otherwise attach to the vessel as the property of a sovereign.

THIS was a cause of damage instituted on behalf of the Netherlands Steamship Company, the owners of the steamship Batavier, and the master, crew, and passengers thereof, proceeding for their private effects, against the screw steamship Charkieh and her freight for the recovery of damages in respect of the total loss of the Batavier by reason of a collision between the two vessels in the Thames on the 19th of October, 1872. The cause was entered on the 21st of October in the sum of 20,000l., and the vessel arrested on the same day in the port of London. On the 12th of November, no appearance having in the meantime been given on the part of any defendant, an application was made to the Court of Admiralty by counsel on behalf of the plaintiffs for leave to

file a petition in general terms, with liberty to amend on an appearance being entered, but the judge, on a representation being made that the Charkieh was a vessel belonging to the Royal Ottoman navy, adjourned the application, and directed the registrar to communicate with the Ottoman ambassador. The Assistant Registrar accordingly, under the direction of the Court, wrote the following letter:

"Admiralty Registry, Doctors' Commons,

"12th November, 1872.

"Your Excellency,

"I am directed by the judge of the High Court of Admiralty to apprise you that a cause of damage on behalf of the owners of a vessel called the Batavier has been instituted in this Court against a vessel called the Charkeish or Charkieh. The judge having received an intimation that the vessel so proceeded against is alleged to belong to the royal navy of the Ottoman Empire, and therefore not amenable to the jurisdiction of this Court, desires that your excellency should be informed of the institution of the suit in question in order that the proper legal steps may be taken for establishing the fact that the vessel does belong to the Ottoman navy if such should be the case.

"I have the honour to be, &c.,

"H. A. Bathurst, Assistant Registrar.

"His Excellency Musurus Pacha, Ambassador

Extraordinary and Plenipotentiary from the

Ottoman Empire, 1, Bryanstone Square."

No reply was received to the letter, but before any further order was made by the Court of Admiralty the Court of Queen's Bench was applied to on behalf of His Highness Ismail Pacha, Khedive of Egypt, and granted a rule calling on the judge of the Admiralty Court and the owners of the Batavier to shew cause why a prohibition should not go to restrain further proceedings in the cause, on the ground that the Charkieh at the time of the collision was an Egyptian government vessel, and therefore, as the property of a foreign state, not amenable to the jurisdiction of the Court of Admiralty. On the 23rd of January, 1873, the Court of Queen's Bench, after hearing arguments, discharged the rule (1),

(1) See Law Rep. 8 Q. B. 197.

and subsequently an appearance under protest was given on behalf of His Highness Ismail Pacha, the Khedive of Egypt, part the owner of the Charkieh, and Admiral Latif Pacha, Minister of Marine for the government of Egypt, who, as defendants under protest, filed a petition on protest, which was in substance as follows:-

"2. Before and until the year 1870 the Charkieh was the property of an Egyptian trading company. In the said year 1870 the said company was dissolved.

3. At the time of the dissolution of the said company, and in the said year 1870, the Charkieh was purchased by the Egyptian government. From the time of the said purchase until and at the time of the collision hereinafter mentioned, and thence until and at the time of the institution of this suit and the arrest of the said steamship therein, the Charkieh has always been and still is the property of His Highness Ismail Pacha, the Khedive of Egypt, as reigning sovereign of the state of Egypt, and during all the time aforesaid has been and still is a public vessel of the government and semi-sovereign state of Egypt.

4. From the time when the Charkieh became the property of His Highness the Khedive, as sovereign prince of Egypt, as hereinbefore alleged, the said steamship has been and still is a ship of the Egyptian branch of the Imperial Ottoman navy, and is entitled to carry and does use and carry the Ottoman naval pendant, and the Ottoman naval ensign, which are used by all the ships of the Egyptian navy, as distinguished from Egyptian merchant vessels.

5. The Charkieh is officered by Egyptians, with the exception of an acting commander, sailing-master, and engineers, who are Europeans. The said Egyptian officers hold commissions from His Highness the Khedive, and are in the naval service of the Egyptian government. The said European officers are respectively under contracts to serve the Egyptian government.

6. All the said officers and crew of the Charkieh are appointed by and are under the control of the defendant under protest, Latif Pacha, as Minister of Marine of the said government of Egypt, and the said steamship is ordinarily and was at the time of her said arrest under the orders and control of the said Minister of Marine. For some time before the Charkieh left Egypt for England as hereinafter mentioned, the said steamship was under the control and orders of the Egyptian Minister of the Interior, and was employed by him as a government packet, carrying the mails and passengers and cargo, between Alexandria and Constantinople.

7. In the month of September, 1871, the Charkieh was despatched from Alexandria to England, for the purpose of being repaired, and the defendant under protest, Latif Pacha, as such Minister of Marine, issued under his seal proper credentials as to her ownership and the service upon which she was engaged. The said credentials are contained in a document annexed hereto.

8. For the purpose of lessening the expense occasioned to the Egyptian government, by sending the Charkieh to England as aforesaid, certain cargo was brought by the said steamship to England. With the same object the said steamship had, before her arrest in this suit, been advertised as about to sail from London to Alexandria carrying cargo."

"9. All freights and passage money whatever which the Charkieh has earned in the aforesaid employment as a packet of the Egyptian government or on her voyage to England have been and are ultimately received by and accounted for to the said Minister of the Interior of Egypt, and form part of the public revenues of Egypt. Any freight earned by the said steamship on her said return voyage to Alexandria will be in the same way received on account of the said Minister of the Interior.

"10. On or about the 19th day of October, 1872, the Charkieh,which had completed her repairs and was returning from a trial trip of her machinery, came into collision with the said steamship Batavier in the River Thames.

"11. On or about the 21st day of October, 1872, this cause of damage, No. 6200, was instituted in this Honourable Court on behalf of the Netherlands Steamship Company, the owners of the said steamship Batavier, and others, against the said steamship Charkieh. On the same day the Charkieh was arrested by virtue of a warrant issued out of this Honourable Court, and has since remained and still remains under such arrest.

"And the solicitors for the defendants under protest pray the Right Honourable the Judge to declare that this Honourable Court has no jurisdiction to entertain this suit, and that the plaintiffs cannot prosecute the same therein, and that the said steamship is not liable to the arrest and process of this Honourable Court, and to order the said ship to be released from such arrest, and to dismiss the said suit and to condemn the plaintiff therein in the costs of these proceedings."

The following is a copy of the document referred to in the 7th article of the petition:

"MinistŽre de la Marine ƒgyptienne.

Avis.

"Le bateau ˆ vapeur CharkiŽh appartenant au gouvernement KhŽdiviŽ du port de 1615 tonneaux, de la force de 350 chevaux et ˆ deux m‰ts, part ce jour d'Alexandrie pour Londres, sous le commandement du capitaine Jovani Anderlich, par ordre de Son Altesse le KhŽdive pour y �tre rŽparŽ, et suivant ordre qui nous a ŽtŽ donnŽ, nous avertissons le public du dŽpart du dit bateau sous pavillon de l'Empire Ottoman.

"Nous prions tous officiers civils et militaires de tout ƒtat ami ou alliŽ, tous fonctionnaires et tous autres, qu'il leur appartient de donner secours et assistance partout o� besoin sera, selon ce qu'exigent les r�glements de la marine durant ce voyage aller et retour et pendant le sŽjour du dit bateau ˆ Londres.

"Alexandrie, ce Jeudi, 29 Gamed Arer, 1288, o� 14 Septembre, 1871.

(SignŽ) Latif Pacha,

Ministre de la Marine ƒgyptienne."

The plaintiffs in their answer denied all the allegations contained in the petition on protest, with the exception of the averments in the 10th article, and alleged as follows:-

"2. The steamship Charkieh proceeded against in this cause is built, fitted, and equipped solely for the purpose of carrying cargo and passengers, and not in any way as a ship of war, and before and until the year 1870, and whilst she is alleged

by the defendant to have belonged to an Egyptian trading company, she was used for the purpose of trade and profit as a merchant vessel, and the said ship was from the time when she is alleged by the defendant to have been purchased by the Egyptian government and until she was despatched from Alexandria in the month of September, 1871, used in like manner by her owners whomsoever for the purpose of trade and profit as a merchant vessel.

"3. Before the Charkieh was despatched from Alexandria in the month of September, 1871, for this country, she was put up at Alexandria by the owners whomsoever in the ordinary way as a general ship to carry cargo to London, and a large quantity of cargo was shipped on board her at Alexandria by divers persons, and accepted by her master and owners whomsoever for carriage to London for freight to be paid for such carriage, and bills of lading for such cargo of an ordinary mercantile character, containing provisions and stipulations for the protection as well of the shipowner as of the owners of the goods were in the ordinary way signed and delivered by or on behalf of her owners whomsoever.

"4. The Charkieh came to England with her said cargo as and upon the footing of an ordinary merchant vessel, and neither the master of the Charkieh nor her owner whomsoever at any time until after she was arrested in this suit claimed that she should be treated otherwise than as an ordinary merchant vessel, and she was in fact treated, and by her master and owners whomsoever without objection suffered to be treated, in all respects as an ordinary merchant vessel, and on her said arrival she received on board her British Custom House officers in the usual way as a merchant vessel, and was reported inwards by her master, and paid light, and tonnage, and other dues in the ordinary way as a merchant vessel.

"5. At the time of the collision between the Charkiehand the Batavier in the said petition mentioned, the Charkieh had been entered outwards at the Custom House in the ordinary way as a merchant vessel, to load cargo for Malta and Alexandria as a merchant vessel, and bad been put and publicly advertised with the authority of her owners whomsoever as one of a regular line of vessels to carry goods and passengers to Malta and Alexandria. The exhibit hereto annexed marked "A" is a true copy of such advertisement. The Charkieh had on board at the time of the said collision a quantity of cargo which had been laden on board her for carriage to Malta or Alexandria on her said then proposed voyage, and which was being used to ballast her on her trial trip in the said petition mentioned.

"6. The plaintiffs submit that even if the Charkieh was at the time of the said collision the property of the Khedive or the government of Egypt, yet that she is subject to the jurisdiction of this Honourable Court, and liable to process in this suit.

"7. The plaintiffs further allege and submit that his Highness Ismail Pacha, the Khedive of Egypt, as reigning sovereign of the semi-sovereign state of Egypt, is not such a reigning sovereign as to entitle him or the government of Egypt to have accorded to the Charkieh by the comity of nations or otherwise the privileges or immunities of a public vessel of war of an independent sovereign or state or the privilege of freedom from arrest and process in this suit.

"And the solicitors for the plaintiffs pray the Right Honourable the Judge to overrule the protest of the defendant to the jurisdiction, with costs."

The following is the exhibit referred to in the 5th article of the answer:

"A."

"

Regular line of screw-steamers to Malta and Alexandria.

Will be promptly despatched to follow the Mahalla, the remarkably fine, first-class

screw-steamer

Charkieh, A 1,

for

Malta and Alexandria.

Has excellent accommodation for passengers.

1167 tons register. 1200 horse-power.

John Anderlich, commander. Loading in Millwall Dock.

"All goods received by special agreement, and must be sent alongside at least two clear days before the date of clearing, and must be distinctly marked with the name of the port for which they are destined, or the ship will not be responsible for the delivery of the same. Barges will be unladen as quickly as possible to suit the convenience of stowage, but if delay occurs, from any cause whatever, the owners will not be responsible for detention of craft. Engagements of goods are subject to there being room in the vessel when they come alongside.

"For freight or passage apply to W. E. Bott and Co., 9, Billiter Street; or to G. L. Jackson and Sons, 18, Billiter Street.

"Mate's receipts (if any) required in exchange for bills of lading, which must be obtained of Cookes and Lloyd, 51, Fenchurch Street."

The following reply was filed on behalf of the defendants:

"1. Save as appears by the petition on protest filed in this cause, they deny the allegations contained in the paragraphs 2, 3, 4, 5 and 7 of the answer of the plaintiffs thereto.

"2. Referring to paragraph 4 of the said answer, they say that after the arrival of the Charkieh in England in the year 1871, and long before the collision between the Charkieh and the Batavier in the petition mentioned, application was made on behalf of His Highness the Khedive of Egypt to the Lords Commissioners of the Admiralty of our Sovereign Lady the Queen to appoint a surveyor to supervise the repairs of the Charkieh as being an Egyptian government vessel and not an ordinary merchant ship, and that the said Lords Commissioners recognising the Charkieh as a vessel of the Egyptian Government as aforesaid, appointed such a surveyor, and the repairs of the Charkieh were effected under his supervision.

"3. They submit that the allegations in paragraphs 2, 3, 4, and 5 of the said answer of the plaintiffs in this suit do not, if they are true, shew that this Honourable Court has jurisdiction to entertain this suit, or that the said plaintiffs can prosecute the same therein."

A conclusion was then filed for the plaintiffs denying the truth of the allegations in the 2nd article of the reply, and maintaining that the same were irrelevant and immaterial.

The cause came on to be heard on the 18th of March, and the hearing was continued on the 19th, 20th, and 21st of March.

Butt, Q.C., Cohen, and Gibson, appeared for the defendants in support of the protest.

Milward, Q.C., and E. C. Clarkson, in opposition.

Witnesses were examined orally before the Court, but the result of their evidence is sufficiently stated in the judgment.

Butt, Q.C. First: the international status of the Khedive of Egypt is that of a sovereign, and for the purposes of this case he must be considered as entitled to all the rights, privileges, and immunities of a sovereign. The truth of this proposition is not matter of evidence, but the Court is bound to take judicial notice of the fact as it really exists: Taylor on Evid. 6th ed. vol. 1, pp. 3, 30; Wheaton, Int. Law, Lawrence's 2nd annotated ed. App. p. 970; Taylor v. Barclay. (1)

[SIR ROBERT PHILLIMORE. According to the case you cite, th Court ought to cause inquiries to be made at the Foreign Office.]

Yes. It would be presumptuous for the defendants to have offered any evidence on the point. It cannot, however, be denied that the Khedive has been recognised in the courts of this and other countries as a sovereign: Melanidis v. Ismail Pacha (C. P. June 6, 12, 1866; July 12, 1866; Jan. 16, 1867); the case of M. Solon (2); Foelix, TraitŽ du Droit international privŽ, 1. 2, tit. 2, c. 2, s. 4, tom. i. pp. 393, 394, n. 3me ed.

Secondly: Inasmuch as the Khedive is a sovereign, the rights, privileges, and immunities to which he is entitled here cannot be less than those accorded to a foreign ambassador: Vattel, Law of Nations, edited by Chitty, Book iv. c. vii. s. 108, p. 485; Phillimore, Int. Law, 2nd ed. vol. 2, p. 135; Wheaton, Int. Law, 8th ed, by Dana, ss. 95, 98; Stephen's Blackstone, 5th ed. vol. 2, p. 507.

Thirdly: It is clear from authorities and from decided cases that no Court in this country could have touched the Charkieh if she had belonged to a foreign ambassador, for an ambassador is by the law of nations free from any suit in the country to which he is accredited, and his goods are not liable to arrest: Magdalena Steam

(1) 2 Sim. 213.

(2) Phillimore's Int. Law, 2nd. ed. vol. 2, 138, 139, (appendix) 616.

Navigation Co. v. Martin (1); Grotius, De jure belli et pacis, lib. ii. c. 18, s. iv. 5; Omnis coactio a legato abesse debet: Grotius, De jure belli et pacis, lib. ii. c. 18, s. ix. 1; Foelix, TraitŽ du Droit international privŽ, l. 2, tit. 2, c. 2, s. 4, tom. i. p. 392, 3me ed. Indeed, an analogous privilege has always been granted to foreign sovereigns in this country: The Duke of Brunswick v. The King of Hanover (2); Wadsworth v. The Queen of Spain (3); De Haber v. The Queen of Portugal (4); Wheaton, Int. Law, Lawrence's 2nd annotated ed. p. 199, n.

Fourthly: The privilege of exemption from process which undoubtedly attaches to the character of a foreign ambassador, and therefore to that of a foreign sovereign. is not lost by reason of his trading: Barbuit's Case (5); Magdalena Steam Navigation Co. v. Martin (1); Taylor v. Best. (6) It is certainly not lost where, as in the present case, the trading, if it exists at all, is merely incidental.

[SIR ROBERT PHILLIMORE referred to the case of The Emperor of Brazil v. Robinson. (7)]

As to this point, the statute 7 Anne, c. 12, which is merely declaratory of the law of nations, is in point. By that statute the immunity of ambassadors engaged in trade is recognised, and the only limitation of their privileges is contained in the 5th section, which enacts that the servant of an ambassador by trading may lose his privilege. That this section only relates to domestic servants is clear from decided cases: Barbuit's Case (5); Triquet v. Bath (8); Heathfield v. Chilton (9); Taylor v. Best (6); Magdalena Steam Navigation Co. v. Martin. (1)

[SIR ROBERT PHILLIMORE. Vattel and Martens distinctly lay down the proposition that if an ambassador acts as a merchant the goods which he employs in trade may be seized.]

Cohen followed on the same side. Fifthly: the circumstance that the present suit is a proceeding in rem to enforce a damage lien cannot operate to give the Court any jurisdiction which it would not otherwise possess. It is a general principle of international

(1) 2 E. & E. 94; 28 L. J. (Q.B.) 310.

(2) 6 Beav. 1; 2 H. L. C. 1.

(3) 17 Q. B. 171; 20 L. J. (Q.B.) 488.

(4) 17 Q. B. 196; 20 L. J. (Q.B.) 495.

(5) Cases tempore Talbot, 281.

(6) 14 C. B. 487; 23 L. J. (C.P) 89.

(7) 5 Dowl. 522.

(8) 3 Burr. 1478.

(9) 4 Burr. 2015.

law that no proceeding in any Court here, whether it be in personam or in rem, can be maintained against a foreign sovereign for any delict or tort committed by himself or his servants, and to this proposition there is one exception, namely, that where there is a lien on the property of a foreign sovereign in this country, and the property is in the possession of an English subject, then for certain reasons and certain purposes distinct from those involved in the present case, a restraint may be placed on the property in the hands of such third party: Gladstone v. Musurus Bey (1); Munden v. The Duke of Brunswick (2); Notes to Mostyn v. Fabrigas; Smith's Leading Cases, vol. i. 6th ed. p. 623; Gladstone v. The Ottoman Bank (3); Smith v. Weguelin (4); United States v. Wilder (5); Larivi�re v. Morgan. (6) This exception, however, is the only one, and it has never been held that the property of a foreign sovereign, whilst it is in the possession of himself or his servants, is liable to arrest. "The practice of the English courts, both of equity and common law, in this country has been in favour of the privileged exemption of sovereigns in all matters of private contract": Phillimore Int. Law, 2nd ed. vol. 2, p. 135. On general principles, from the reason of the thing, sovereigns must be held exempt equally in cases of crimes, torts, and delicts: Phillimore Int. Law, vol. 2, 2nd ed. p. 132: Briggs v. The Light Boats. (7) That foreign sovereigns are so exempt from liability is obvious from the very definition of the word law. Can one sovereign command another? If a crime or tort is committed here by a foreign sovereign the courts of this country cannot exercise jurisdiction. It must be remembered that the distinction now drawn between crimes and torts was not formerly regarded, and former writers on international law, in holding that a sovereign prince was not liable to answer for crimes committed by himself or his servants, were in fact maintaining the position that a sovereign was not liable to any foreign jurisdiction. The Charkieh is a public vessel of the government of Egypt; and

(1) 1 H. & M. 495; 32 L. J. (Ch.) 155.

(2) 10 Q. B. 656; 16 L. J. (Q.B.) 300.

(3) 1 H. & M. 505; 32 L. J. (Ch.) 228.

(4) Law Rep. 8 Eq. 198.

(5) 3 Sumner U. S. 308.

(6) Law Rep. 7 Ch. 550.

(7) 11 Allen, Massachusetts Rep. 157, 185.

admitting that she was incidentally trading, she is none the less entitled to immunity from arrest: Ortolan, R�gles Internationales et Diplomatie de la Mer, 4me. Žd. tom. i. pp. 180 - 185; Briggs v. The Light Boats (1); Wheaton, Int. Law, Lawrence's 2nd annotated ed. p. 201. From these considerations, it is clear, that assuming that no action in personam could be brought against the Khedive to recover for damage done by the Charkieh when in the possession of his servants, no proceeding in rem against that vessel can be maintained in this Court, for the only object of the maritime lien conferred by damage is to give a security for the enforcement of an obligation, and it has been shewn that no personal obligation binding a foreign sovereign can be enforced in this country: The Bold Buccleugh (2); The Druid (3); The Thetis (4); The Halley (5); The Sappho. (6)

Milward, Q.C., for the owners of the Batavier. Assuming the Khedive to be a sovereign, the decision in the present case mainly depends on the answer to the question, was the Charkieh engaged in trade? If she was, and was received into this country as a trader, of which fact there is abundant evidence, no reason has been given why the jurisdiction of this Court over her should be ousted. It cannot surely be contended that the Khedive would not be held liable to pay for salvage services rendered to her, or to an action brought to recover damage done to the cargo on board her. None of the cases relied on by the other side are in point. Here the Khedive has held himself out as a trader, and waived and renounced whatever privileges he might otherwise be entitled to. The true distinction to be drawn from all the authorities is, that the property of an ambassador belonging to him in the capacity of an ambassador is privileged from arrest; but if he deals as a merchant he cannot claim immunity for the property he employs in trade: Vattel, Law of Nations, Book iv. c. viii. s. 114; KlŸber, Droit des gens moderne de l'Europe, s. 210; Martens, PrŽcis du Droit des gens moderne de l'Europe, s. 217;

(1) 11 Allen, Massachusetts Rep. 157, 185.

(2) 7 Moo. P. C. C. 267.

(3) 1 W. Rob. 391.

(4) 3 Maritime Law Cases, 357.

(5) Law Rep. 2 A. & E. 3; Law Rep. 2 P. C. 193.

(6) Law Rep. 3 A. & E. 142; Law Rep. 3 P. C. 690.

Phillimore, Int. Law, 2nd ed. vol. 2, p. 215; Bynkershoek, De foro legatorum, cap. xiv. Opera Omnia, vol. ii. p. 165; ed. 1767; Wheaton, Int. Law, Lawrence's 2nd annotated ed. pp. 192, 199. The statute of Anne does not carry the case any further, for it only declares that the person of an ambassador and his goods qu‰ ambassador shall not be seized; indeed, it is expressly said, in the judgment of the Court in Taylor v. Best (1), that in many cases a proceeding in rem against the property of an ambassador may proceed, and articles which are unconnected with his personal comfort and dignity may be taken. Can it, however, be said that the Khedive is entitled to the privileges of an ambassador? The Khedive is not a sovereign prince. The case of M. Solan (2) is no authority to shew that Egypt was recognised in the French courts as a sovereign state; and a consideration of the convention of July, 1840, by which Egypt was constituted a province under Mehemet Ali (Hertslet's Treaties, vol. v. p. 544), and subsequent events lead to the conclusion that the Khedive is not a sovereign prince: Wheaton, Int. Law, Lawrence's 2nd annotated edition, p. 66; Phillimore Int. Law, 2nd ed. vol. 1, p. 129.

But however high the privileges of the Khedive may be, he is answerable as a private person for any act done here other than in his public capacity: The Duke of Brunswick v. The King of Hanover (3); Ortolan, R�gles Internationales et Diplomatie de la Mer, 4me. Žd. tom. i. p. 404; Vattel, Law of Nations, Book iv. c. viii. s. 114; Chitty's ed. p. 492: Briggs v. The Light Ships. (4) And even assuming that, by the comity of nations, a public war vessel belonging to him would be privileged from arrest, the exemption would not necessarily extend to other vessels, though they might be employed by him on the business of his government: The Schooner Exchange v. McFaddon (5); The Santissima Trinidad (6); Vattel, Law of Nations, s. 113; Clarke v. New Jersey Steam Navigation Company (7) That such a distinction does exist is shewn by the treaties that have from time to time been entered into between England and other nations for the purpose of securing to mail

(1) 14 C. B. 487; 23 L. J. (C.P.) 89.

(2) Phill. Int. Law, 2nd ed. vol. 2, appendix, 616.

(3) 6 Beav. 1; 2 H. L. C. 1.

(4) 11 Allen, Massachusetts Rep. 157, 185.

(5) 7 Cranch, U. S. Supreme Court Rep. 116.

(6) 7 Wheaton, 283.

(7) 1 Story, 531.

packets the privileges of vessels of war. (1) It is also apparent that the contrast between an armed national vessel and a government ship engaged in trade was present to the minds of the judges before whom the cases of The Prins Frederik (2) and The Schooner Exchange v. McFaddon (3) were brought.

[SIR ROBERT PHILLIMORE referred to the case of The Swift. (4)]

E. C. Clarkson followed on the same side. The defendants rely on two contentions: first, they say that the Khedive of Egypt is an independent sovereign; secondly, that if he is an independent sovereign, the Charkieh, as a vessel owned by him, must be held to be exempt from suit in this court. Both these propositions can be controverted. It is admitted that the Khedive of Egypt is without many of the powers and rights usually possessed by sovereigns; that he has no power to send ambassadors, no power to make war; a consul of a foreign nation sent to reside in Egypt obtains his exequatur from the Porte, and without the sanction of the Porte no political treaty can be entered into by Egypt (Twiss, Law of Nations, vol. 1, s. 66, p. 94.) The Khedive has, moreover, failed to shew that, for acts done out of Egypt in other parts of the dominion of the Sultan, he would not be amenable to the jurisdiction of the courts at Constantinople; and if he were amenable to justice there, surely he is amenable to justice here: Penn v. Lord Baltimore. (5) The defendants have treated the position of a foreign sovereign in this country as analogous to the position of an ambassador. but their positions are not analogous: Woolsey, Int. Law, ss. 92b, 92e. The privilege of an ambassador is the privilege of the sovereign by whom he is sent, and cannot be waived: Duke of Montellano v. Christin (6); The Emperor of Brazil v. Robinson. (7) But a foreign sovereign can waive any rights or privileges attaching to his character. Phillimore Int. Law, 2nd ed. vol. ii. p. 181. He can lay down the prince and put on the private man at pleasure: Wheaton Int. Law, s. 101, 8th ed.

(1) Treaty between Belgium and England, 1834; Herstlet's Treaties, vol. 7, p. 81; Belgium and England, 1844; Herstlet's Treaties, vol. 7, p. 86; France and England, 1856; Herstlet's Treaties, vol. 10, p. 108.

(2) 2 Dods. 451.

(3) 7 Cranch, U. S. Supreme Court Rep. 116.

(4) 1 Dods. 320.

(5) White and Tudor's Leading Cases in Equity, 4th ed. vol. 2, p. 923.

(6) 5 M. & S. 503.

(7) 5 Dowl. 522.

by Dana, p. 161; and if he elects to come to this country as a trader or send a vessel to trade here, he cannot claim the privileges and immunities which the comity of nations would otherwise accord to him in his character of a sovereign: Twiss, Law of Nations, vol. 1, s. 205, pp. 313, 314. If this contention is right, and a foreign sovereign can contract himself out of the privileges of his sovereignty, it is abundantly clear that, even assuming that the Khedive of Egypt is an independent sovereign, all privileges of immunity have been waived with reference to this vessel. In fact, the Charkieh came here on the footing of an ordinary merchant vessel, and one of the implied terms on which she was received into this country as a trader was, that she should conform to English law and be amenable to the jurisdiction of our courts.

Butt, in reply.

May 7. SIR ROBERT PHILLIMORE. This is a cause instituted on behalf of the Netherlands Steamship Company, the owners of the steamship Batavier, and on behalf of the master, crew, and passengers thereof, against the screw steamship Charkieh and her freight, for damages arising out of a collision between the Batavier and the Charkieh in the river Thames, on the 19th of October, 1872.

The cause was instituted and the Charkieh was arrested by a warrant from this Court on the 21st of October.

No appearance was at that time entered on behalf of the owners of the Charkieh, but in the month of November an application was made on behalf of his Highness Ismail Pacha, Khedive of Egypt, to the Court of Queen's Bench for a prohibition to restrain this Court from proceeding further in the suit, and a rule nisi was granted, which rule was, after argument, on the 23rd of January, 1873, discharged. (1)

It appears from the report that the Court of Queen's Bench expressed no opinion upon the question which it was sought to raise on the application for a prohibition, deciding only that the question was one upon which this Court was specially qualified to adjudicate. Since this decision an appearance has been entered

(1) Law Rep. 8 Q. B. 197.

under protest for his Highness Ismail Pacha, the Khedive of Egypt, the owner of the Charkieh, and Admiral Latif Pacha, Minister of Marine of the government of Egypt. The pleadings on protest have been filed; they consist of a petition on behalf of his Highness the Khedive, an answer on behalf of the owners of the Batavier, a reply, and a conclusion. The petition concludes with a prayer to this Court - [His lordship here read the prayer of the petition].

The principal averments of fact and law in the petition are the following: That the Charkieh is the property of his Highness Ismail Pacha, the Khedive of Egypt, as reigning sovereign of the state of Egypt, and is a public vessel of the government and semi-sovereign state of Egypt.

In support of this proposition certain matters of fact connected with the history of this vessel are set forth in the succeeding articles. It is alleged that "from the time when the Charkiehbecame the property of His Highness the Khedive, as sovereign prince of Egypt," she has been "a ship of the Egyptian branch of the Imperial Ottoman navy," entitled to carry and carrying "the Ottoman naval pendant and the Ottoman naval ensign, which are used by all the ships of the Egyptian navy as distinguished from Egyptian merchant vessels." This designation, "Egyptian navy," appears to me, for reasons hereafter to be stated, inaccurate. It is further alleged that the Charkieh is officered by Egyptian officers holding commissions from the Khedive "in the naval service of the Egyptian government;" that the officers and crew are appointed by the minister of marine of the government of Egypt, and the ship was under his control at the time of her arrest. That some time before she left Egypt for England she was "under the control and orders of the Egyptian minister of the interior, and was employed by him as a government packet, carrying the mails, and passengers, and cargo between Alexandria and Constantinople." That in September, 1871, she was sent to England to be repaired, with proper credentials. That for the purpose of lessening expense she brought cargo to England, and, at the time of her arrest, was advertised to carry cargo back to Alexandria. That all freights and passage money earned by her were received and accounted for by the Egyptian Minister of the Interior as part of the public revenues of Egypt. That she had

completed her repairs and was returning from a trial trip when the collision happened; and I may observe here that she had a small portion of the cargo which she was to carry to Alexandria then on board.

The answer, in substance, sets up that the Charkieh came to England on the footing of an ordinary merchant vessel, and was so treated without objection in all respects by the proper public authorities of England. That she was regularly advertised as a merchant vesssl when about to leave Alexandria for England, and when again about to return, on the former occasion carrying cargo on the terms of ordinary bills of lading. It appears from the evidence that she was chartered to an English subject for the voyage to Alexandria.

The answer further submits that the Khedive "is not such a reigning sovereign as to entitle him or the government of Egypt to have accorded to the Charkieh by the comity of nations or otherwise the privileges or immunities of a public vessel of war of an independent sovereign or state, or the privilege of freedom from arrest and process in this suit."

Not much oral evidence has been given in this cause. The first witness had the rank of a pacha, and held a commission, as rear-admiral, granted by the Porte. He had been sent to England by the Khedive to superintend the repairs of this vessel. I collected from him that there is at present a fleet of six or seven vessels belonging to the Khedive, all engaged in ordinary commerce, "taking" (to use the words of the witness) "cargo, specie, passengers, everything," and all employed in the same service as mail vessels between Alexandria and Constantinople. It appears that the same vessels belonged before to a private merchant company, and were sold to the Khedive.

The Charkieh carried the flag of the Imperial Ottoman Navy. It appears that there is a flag used for Egyptian merchant vessels, but no flag of the Egyptian navy, as pleaded. A person of the name of Anderlich is acting commander, with no naval rank, and not a subject of the Khedive. The Khedive appoints to no higher rank than that of colonel in the army, the Sultan appointing all higher officers, and similarly in the navy.

Mr. Jackson deposed that his firm acted as brokers for the

Charkieh; that he chartered the Charkieh back to Alexandria, and caused handbills to be printed, of which the following is a specimen: [His lordship here read the advertisement annexed to the answer.] He said that the Charkieh on her arrival here was entered by him at the Custom House like an ordinary merchant vessel; that he stated that, as the ship belonged to the Khedive, he had no register to produce and the excuse was admitted, that he paid light, pilotage, and tonnage dues.

O'Connor, a Custom House officer, was examined. He boarded the Charkieh at Gravesend, and went up with her to the docks, where he left her in charge of the Custom House authorities.

From these averments in the pleadings, and these facts in the evidence, the following questions arise:

1. Is the international status of the Khedive that of sovereign prince of Egypt?

2. Is he entitled by virtue of that status to claim the exemption of this ship from the jurisdiction of this Court?

3. If he be entitled to this privilege, has he waived or forfeited it?

I proceed to consider these questions in their order, and first, as to the international status of His Highness the Khedive. Very scanty evidence as to this status of the Khedive was produced before me at the hearing of the case. I was told by the counsel for his Highness that it was considered improper to offer evidence upon this subject, that it was my duty to take official cognisance of that status, and to obtain, by reference to the Foreign Office, any information which I might think necessary. Whether this was, or was not, the right course on the part of counsel to adopt, I do not now stop to inquire. I have endeavoured to inform myself, and have had recourse to the following sources of knowledge:

1. The general history of the government of Egypt.

2. The firmans which contain the public law of the Ottoman Empire on this subject.

3. The European treaties, which concern the relations between Egypt and the Porte.

4. The answer which the Foreign Office has furnished to an inquiry which I thought it my duty to make.

In the first place, some reference to the past as well as to the

present political history of Egypt seems necessary in order to ascertain whether, at any time since the Mahommedan conquest, that country has possessed the character of an independent state; because in weighing the effect of doubtful facts and circumstances arising out of the vicissitudes of national life, it might fairly be considered that such a character once possessed might more easily revert, than, having had no previous existence, be for the first time created.

The conquest of Egypt was effected by Amer, the General of the Caliphs, in 638 A.D., and from the death of Caliph Omar, in 644 A.D., it continued to be a province of the Arab empire under a governor appointed by the Caliphs. This nominal subordination to the Caliphs appears to have continued while the government de facto was in the hands of various dynasties, who reigned under the title of Soldan or Sultan of Egypt. The last Sultan of the Memlook dynasty of Egypt, which had been established about 1250 A.D., was overthrown in 1517 A.D., by Selim, I., the Ottoman Sultan of Constantinople.

About this time the last of the Caliphs in Egypt died; the caliphate of Egypt came to an end, and the title of caliph was thenceforward assumed by the Sultan of Constantinople. Although Selim I. abolished the dynasty of the Memlooks, he preserved an aristocracy of that race under the authority of the Viceroy, nominated by the Porte and designated Pacha of Egypt.

By this new constitution, 24 Beys were created: and the obligation was imposed of sending tribute to Constantinople, and of furnishing 12,000 men in time of war. This quasi republic, composed of a Memlook aristocracy, was not wholly abolished till after the period of the French invasion at the close of the last century. During this interval, however, successful chieftains continually revolted from the Porte, and the more powerful of the Beys exercised absolute dominion over the country. In 1747 A.D., Ibrahim Kehia seized upon the supreme authority and declared the independency of Egypt. In 1758 A.D., Ali Bey, not the least remarkable of those warriors who rose to the surface in these troubled times, possessed himself of the government of Egypt, and ruled over that country some time, with an appearance of deference to and a recognition in the abstract of the sovereignty of the Porte,

up to the period of 1774 A.D., when his eventful career was ended. In 1798 A.D., the invasion of Egypt by Buonaparte took place under the pretext of delivering Egypt from the Memlooks. In 1801 A.D., the victories of England once more restored Egypt to the dominion of the Porte.

In 1806 A.D., an important epoch begins. In that year Mohammed Ali obtained from the Sultan a legal nomination to the Pachalic of Egypt, the actual authority of which he was already exercising. After the departure of the English from Alexandria and the massacre of the Memlook Beys, Mohammed took the command of forces previously sent by him into Arabia, to subdue the sect of the Wahabees. During the interval between this period and 1831 A.D., he possessed an army of 60,000 men and a considerable navy, established a de facto empire from Senaar and Kadofan over all Syria to Adana, a part of Cilicia at the foot of Mount Taurus, and ruled over the island of Candia. The Porte, struggling with the rebellion of the Pacha of Janina, not subdued till 1822 A.D., and the uprising of the Greeks, whose liberties were established by the battle of Navarino in 1827 A.D., opposed a fitful, underhand, and feeble opposition to the continued practical aggression, however disguised in language, of its great subject.

Between the battle of Navarino (1827 A.D.) and the treaty, presently to be mentioned, of 1833 A.D., an important portion of Egyptian history intervenes, having a more immediate and direct bearing upon the question of public and international law which I am called upon to decide. Mohammed Ali, on being refused the Pachalic of Acre by the Porte, found various pretexts for the invasion of Syria, on the actual possession of which, it was manifest, the supremacy of the Porte or of the Khedive of Egypt would depend.

In 1831 A.D., the Egyptian army and Ibrahim Pacha passed the frontier. As soon as the Porte was apprised of this event, an order was immediately despatched to Mohammed Ali to recall his troops. To these and further orders he turned a deaf ear. An official declaration of war against him, preceded by a religious anathema or public declaration that he and his sons were rebels, and out of the pale of Mussulman law, did not stop his course.

In May, 1832, Acre was captured by his troops. Not long afterwards

all Syria was conquered for him by Ibrahim, his general and son. The armies of the Porte were routed and destroyed, and the advance of the conqueror upon Constantinople was only prevented by the intervention of the great European Powers. Nevertheless, by a kind of convention usually called the treaty of Kutaieh (1), between the Sultan and Mohammed, the latter obtained a great addition of power and territory; for he retained possession of Syria and the passes of Mount Taurus or the district of Adana. He undertook indeed to pay tribute for Syria, as well as Egypt; but, with his army and navy untouched, and with these possessions, the Pacha of Egypt was allowed to remain, in fact, more powerful than his nominal master at Constantinople.

Here I will pause a moment to consider the law applicable to the facts as now stated.

What were the relations at this epoch existing between the Khedive and the Porte, and what was the nature and character of the authority of the former, so far as foreign states are connected with these considerations? Did they entitle the Khedive to the privilege of the sovereign of an independent state? These are questions which must be answered, like all others appertaining to international jurisprudence, by a reference to usage, authority, and the reason of the thing.

Many accredited writers and jurists have drawn a distinction, which seems not to have escaped the framer of the Khedive's petition on protest now before me - between a sovereignty absolute and pure, and that less complete and perfect dominion to which the name of half-sovereignty (demi-souverain) has been given. I am inclined to think that the sovereign of a state in the latter category may be entitled to require from foreign states the consideration and privileges which are unquestionably incident to the sovereign of a state who is in the former category. There are also certain acts of feudal homage, or, as jurists say, servitutes juris gentium, which do not disentitle the state obliged to them to an international existence as a separate state.

Some examples of half sovereignties are to be found in history. Some of the smaller states (halb souverain) of the German confederation, before it was virtually destroyed by Napoleon's

(1) See Testa, Recueil des TraitŽs de la Porte Ottomane, t. ii. 354.

confederation of the Rhine, and formally extinguished by the abdication of the Emperor Francis in 1806, also furnished examples of states cum imminutione imperii - to borrow the expression of Grotius (1) - but entitled to be treated as states by foreign powers. The old feudal relations of the Dukes of Burgundy, Normandy, and Brittany to France did not, I believe, prevent these princes from being considered as sovereigns at home and abroad, and from being entitled to be represented by ambassadors at foreign courts.

Other instances might be mentioned, in which neither the payment of tribute, as in the cases of the Kingdom of the Two Sicilies to the Pope, continued till 1818 A.D., or of the King of Hungary to the Sultan, from the reign of Ferdinand the First till the treaty of Silvatorok in 1606 A.D., nor other acts of purely feudal homage, - such as the presentation of the white palfrey presented to the Pope by the King of the Two Sicilies, - (2) disentitled the representative of a state in these conditions to the enjoyment abroad of the privileges usually accorded to a foreign sovereign or his representatives.

It has been well said by a commentator on Martens' work:-

"La souverainetŽ extŽrieure n'est autre chose que l'indŽpendance de l'ƒtat vis-ˆ-vis des autres Žtats." (3)

It may, moreover, be that, if such a status existed de facto, it would not be the province of the tribunals of a foreign state to look beyond the fact, or to inquire minutely or at all into the history of its establishment. International law has no concern with the form, character, or power of a state, if, through the medium of a government, it has such an independent existence as to render it capable of entertaining international relations with other states. An apt illustration of this position is furnished by the status accorded by European Powers in more modern times to what were once commonly called the Barbary States. They had practically shaken off the Ottoman dominion. Bynkershoek describes them as "civitates qu¾ certam sedem atque ibi imperium

(1) Grotius, De Jure Belli et Pacis, lib. ii. c. xv. s. vii. 1; Cambridge edition, 1853, vol. 2, p. 136.

(2) See Phill. Int. Law, 2nd ed. vol. 2, 434.

(3) Pinheiro Ferreira on Martens, PrŽcis du droit des gens, edited by VergŽ, l. i. c. 3, s. 23, t. i. p. 98, Paris, 1858.

habent, et quibuscum nunc pax est nunc bellum, non secus ac cum aliis gentibus, quique propterea ceterorum principum jure esse videntur." (1) And in the year 1801 Lord Stowell fully adopted this position, and asserted that the African states had "long acquired the character of established governments, with whom we have regular treaties, acknowledging and confirming to them the relations of legal states;" and he remarked that, "although their notions of international justice differ from those which we entertain, we do not on that account venture to call in question their public acts," - that is to say, that, although they are perhaps on some points entitled to a relaxed application of the principles of international law, derived exclusively from European custom, they are nevertheless treated as having the rights and duties of states by the civilized world: The Helena. (2)

It is to be observed, however, that the Court proceeded upon the principle that a nation with whom we had regular treaties was de facto acknowledged without a formal recognition to have what jurists have termed the right of a political personality (KlŸber, § 25 (3)), that is, the position of a state in the great commonwealth of nations.

If, at this period, I had been obliged to decide whether the Pacha of Egypt was entitled to the privilege of a sovereign in this country, my decision would have been influenced by a regard to the de facto sovereign rights apparently exercised at this period by his Highness; and perhaps the analogy of an European state having absolute dominion over its own subjects with feudal subordination to another state might have been cited with effect.

Though, even in this crisis of the history of Egypt, when the independence of that country was so nearly established, it must be observed that no attempt appears to have been made on behalf of the Pacha to exercise the principal international attribute of sovereignty, namely, the jus legationis, to be represented by an ambassador or diplomatic agent at the court of foreign sovereigns;

(1) Bynkershoek, Quaestiones Juris Publici, lib. i. c. 17; Opera Omnia, vol. 2, p. 223, ed. 1767.

(2) 4 C. Rob. 3.

(3) KlŸber, Droit des gens moderne de l'Europe, par M. A. Ott, Paris, 1861, p. 35.

nor is there any reason to believe that such an attempt, if made, would have been successful.

But in the interval between 1833 A.D. and 1841 A.D. the scene is greatly changed. The actors remain, but play very different parts.

Nor is it unimportant to observe, with reference to the question immediately before me, that the stream of Egyptian political history, however immiscible the characters of the individual Mahommedan and Christian may be, has ever since this epoch been greatly affected by the currents of European diplomacy. I pass by earlier treaties and the treaty of Unkiar Skelessi in 1833 A.D. (1), which, placing Turkey under the protectorate of Russia, has been superseded by a later treaty. Mohammed Ali and Ibrahim, in 1834 A.D., pursued the scheme of uniting all the provinces belonging to the caliphate under their Government; but discontents arose among the natives of Syria, which were not appeased by the disarmament of the Druses and of the population generally. These discontents revived the hopes of the Sultan, and, in 1839 A.D., he sent another army into Syria, which was defeated at Nezib. But in 1840 A.D., Mohammed Ali was made aware that the European powers would not allow an Arab empire to be established on the ruins of the Ottoman state.

England sent an agent to warn the Pacha of his danger, and, in answer to a statement of his rights, the following language was used: "I have to instruct you," said Lord Palmerston to Colonel Hodges, the agent employed, "on the next occasion on which Mohammed Ali shall speak to you of his rights, to say to his highness, that you are instructed by your Government to remind him that he has no rights except such as the Sultan has conferred upon him; that the only legitimate authority which he possesses is the authority which has been delegated to him by the Sultan over a portion of the Sultan's dominions, and which has been entrusted to him for the sole purpose of being used in the interest and in obedience to the orders of the Sultan; that the Sultan is entitled to take away that which he has given; that the Sultan may probably do so if his own safety should require it; and that

(1) Martens, Nouveau Recueil de TraitŽs, tom. xi. p. 655; State Papers, vol. 20, p. 1176.

if in such case the Sultan should not have the means of self-defence, the Sultan has allies, who may possibly lend him those means" (Correspondence relating to the affairs of the Levant presented to Parliament in 1841. pt. 1. p. 592).

And on the 18th of July, 1840, Lord Palmerston wrote to Colonel Hodges as follows: "You will see that orders have been given to the British fleet to act at once, by cutting off the communication between Syria and Egypt, and by helping the Syrians. If Mehemet Ali should complain of this, and of its being done without notice, you will remind him civilly that we are the allies of the Sultan, and have a right to help the faithful subjects of the Sultan in maintaining their allegiance, and to assist the Sultan against those of his subjects who are in revolt against him, as Mehemet Ali is; and that Mehemet Ali, not being an independent sovereign with whom the Four Powers have any political relations, those Powers are not bound to give him any notice of their intended proceedings" (Ibid., pt. 2, p. 5).

And again, on the 14th of September, 1840, Lord Palmerston wrote, "With reference to your despatch of the 17th of August, I have to instruct you to state in writing to Mehemet Ali, if the state of things should render it necessary to do so, that Egypt is a portion of the dominions of the Sultan; that British subjects have certain rights and privileges as to the security of their persons, property, and commerce in all parts of the Ottoman Empire, by virtue of treaties concluded between the British Crown and the Porte; and that any subject of the Sultan, whether in a state of obedience to, or of revolt against, the authority of the Sultan, who should take upon himself in any way or in the slightest degree to molest British subjects, or to interfere with the exercise of their rights and privileges, would incur a heavy and most serious responsibility" (Ibid. pt. 2, p. 187).

These passages from the despatches of the English Secretary for Foreign Affairs were not adverted to in the argument of counsel. I suppose, however, that, after such reference, it could not be contended that, if at this epoch the question now before me as to the claim of the Khedive to be treated by England as a sovereign prince had arisen, such a claim could have been maintained in this Court.

Have events subsequent to this epoch made this claim, then untenable, capable of being sustained? Surely not; for the principles of international policy enunciated in these despatches were fully carried into execution by the convention of the 15th of July, 1840 (1), by which Austria, England, Prussia, and Russia concurred in the determination to protect the Porte by coercive measures, if necessary, against the Pacha. Whether the Pacha should be a sovereign prince or a subject, however powerful, of the Porte, seems to have depended on the result of this war. But the consequence of this European intervention was the rapid overthrow of the Pacha's power in Syria; after which the Sultan issued to the Pacha the firman of the 13th of February, 1841, to which I will presently refer, and which will be found with the other firmans bearing on this subject in the appendix to this judgment.

In 1849 Mohammed Ali, having ceased to rule on account of imbecility in the preceding year, died, and was succeeded by Abbas, who died in 1854 A.D.; to him succeeded Saed, who died in 1863 A.D., and to him succeeded the present Khedive. In 1866, 1867, 1869, A.D., circumstances induced the Porte to issue additional firmans. In these documents, as well as in the firman of 1841, are to be found the existing relations between the Porte and the Pacha of Egypt, now called the Khedive. The principal and most important of these relations may be said to form part of the present public law of Europe.

The first firman of the 13th of February, 1841 (of which I have only the French translation) begins by reciting the act of submission (l'acte de soumission) by the Pacha, and the experience which he has acquired during the time he has occupied the position of "Gouverneur de l'ƒgypte," and proceeds:- "Je t'accorde le gouvernement de l'ƒgypte dans ses anciennes limites, avec le privilŽge additionnel de l'hŽrŽditŽ." Certain conditions are added as to the succession of his heir in the direct male line, on the failure of which the Porte is to confer the government on some other person" (Correspondence relating to the affairs of the Levant, pt. 3, p. 436). And then follows this important qualification (at p. 437): "Bien que les Pachas d'ƒgypte ayent obtenu le privilŽge

(1) Hertslet's Treaties, vol. 5, pp. 535, 544; Murhard, Nouveau Recueil de TraitŽs, tom. i. p. 156.

de l'hŽrŽditŽ, ils doivent cependant �tre considŽrŽs quant ˆ la prŽsŽance comme Žtant sur un pied d'ŽgalitŽ avec les autres Vizirs, ils seront traitŽs comme les autres Vizirs de ma Sublime Porte, et recevront les m�mes titres que l'on donne aux autres Vizirs quand on leur Žcrit."

All the treaties concluded, or to be concluded, between the Porte and friendly powers "seront complŽtement mis ˆ l'exŽcution dans la province de l'ƒgypte aussi;" so also the fundamental laws contained in the Hatti-Sheriff of GulhanŽ (3rd of November, 1839, State Papers, vol. 31, p. 1239). All taxes are to be imposed and received in the name of the Sultan, and "attendu que les ƒgyptiens aussi sont les sujets de ma Sublime Porte," certain regulations are to be made to prevent their being harassed by the manner of their imposition. The amount of annual tribute is to be fixed. The army is not to exceed 18,000 men, "Mais vu que les troupes de terre et de mer de l'ƒgypte sont instituŽes pour le service de ma Sublime Porte, il sera permis, en temps de guerre, de les porter au nombre qui aura ŽtŽ jugŽ convenable par ma Sublime Porte."

The troops are to carry the same colours as those of the Porte.

In the firman of the 27th of May, 1866 (1), which settled the mode of succession to the Pachalic, the Sultan speaks of the acts of the viceroy "depuis ta nomination au gouvernement gŽnŽral de l'ƒgypte, qui est l'une des provinces les plus importantes de mon Empire."

In the firman of the 15th of June, in the same year (1), the Sultan settled the mode of appointing a regency in the case of the viceroy dying before his son had attained the age of eighteen years.

The firman of the 8th of June, 1867 (1), is addressed "to my illustrious Vizier Ismail Pacha, who now holds the rank of Grand Vizier, with the title of 'Khidev' of Egypt." It again refers to the fundamental laws which are to be observed in Egypt as well as in other parts of the dominions of the Porte, but allows the viceroy to frame certain regulations, and then proceeds (here I have only the English translation):-

"In like manner, whilst all the treaties of the Sublime Porte

(1) See Appendix to this case.

must be respected in Egypt, an exception is made only as regards the custom duties, and as regards foreigners, in matters relating to the police, postal and transit services, for which full powers are given to thee to enter into special arrangements with foreign agents. But such arrangements must not take the form of treaties or conventions having any political signification or purport. And in the event of their being inconsistent with the principles laid down above, or opposed to my original sovereign rights, it will be necessary to note them as null and void."

On the 29th of April, 1861, a treaty of commerce and navigation between Her Majesty and the Sultan was signed at Kanlidja. By the 20th Article it is provided that "The present treaty shall receive its execution in all and every one of the provinces of the Ottoman Empire; that is to say, in all the possessions of His Imperial Majesty the Sultan situated in Europe or in Asia, in Egypt, and in the other parts of Africa belonging to the Sublime Porte, in Servia, and in the United Principalities of Moldavia and Wallachia." (1)

I have been informed that the British Consul General in Egypt does not obtain an exequatur from the Viceroy, but on his appointment obtains the berat or exequatur from the Porte.

The result, then, of the historical inquiry as to the status of his Highness the Khedive, is as follows: That in the firmans, whose authority upon this point appears to be paramount, Egypt is invariably spoken of as one of the provinces of the Ottoman Empire. That the Egyptian army is regulated as part of the military force of the Ottoman Empire. That the taxes are imposed and levied in the name of the Porte. That the treaties of the Porte are binding upon Egypt, and that she has no separate jus legationis. That the flag for both the army and the navy is the flag of the porte.

All these facts, according to the unanimous opinion of accredited writers, are inconsistent and incompatible with those conditions of sovereignty which are necessary to entitle a country to be ranked as one among the great community of states.

Against this array of negative proof is to be set the solitary circumstance that the office of Khedive is hereditary. It requires

(1) Hertslet's Treaties, vol. 11, pp. 561, 567.

but little consideration to see that this peculiarity cannot affect the question. Egypt remains a province of an empire, and does not become an empire, because her viceroy is hereditary. The viceroy does not become a sovereign prince because his sovereign permits him to transmit the viceroyalty to his descendants in the direct male line. The hereditary character does not confer on the holder, in this case, the right of making war and peace, of sending an ambassador, or of maintaining a separate military or naval force, or of governing at all, except in the name and under the authority of his sovereign.

The hereditary character of the Viceroyalty may make the Viceroy the chief subject of the Porte, but he is still a subject prince, and not a sovereign prince or "reigning sovereign" even "of a semi-sovereign state," according to the terms of the petition on protest.

I have one more observation to make before I leave this branch of the subject. It cannot be urged in favour of the exemption of the Charkieh, that, though she may have been erroneously claimed as a public vessel of the Egyptian government, it is substantially the same thing if she be a public vessel of the Ottoman government of which the government of Egypt is a part; because at the very beginning of these proceedings I directed the Registrar to write the following letter to the ambassador of the Porte:-

[His Lordship read the letter set out above.]

No answer has been sent to this letter, and no intervention of any sort has taken place on behalf of the Porte. Thereupon this argument occurs, - It cannot be denied that for the abuse of the privilege of the sovereign or the ambassador, some remedy must be found. It has been shewn that the Khedive has six or seven ships acting as merchantmen, for whom he claims the same privilege as for the Charkieh, and the number may be indefinitely increased. It has been said that the remedy is to be found in an application to the sovereign to abate the abuse.

Any such application must be made in the present instance to the Porte. But the ambassador of the Porte asserts no such claim. It is the governor of a province of the state that insists upon the privilege. To communicate directly with the governor in this matter would be to derogate from the dignity of his sovereign,

and to place in the rank of a sovereign a governor whom his own sovereign has placed in the rank of a subject.

Lastly, no treaty ever having been made with his Highness, no ambassador ever received from or sent to him, British consuls in Egypt receiving no exequatur from him, there being, in other wolds, no de facto recognition of his Highness as a sovereign by our government, has there been any recognition de jure of him in this capacity?

The Court of Chancery, when a plaintiff averred in his bill that a certain republic in Central America had been recognised as an independent government, put itself in communication with the Foreign Office, and after such communication, declared itself authorized to state that the republic in question had never been recognized by the government of this country, and on the ground that what was pleaded was "historically false," allowed a demurrer to the bill: Taylor v. Barclay. (1) I have communicated with the Foreign Office, and have received the following answer to my questions, viz.: "that the Khedive has not been and is not now recognised by Her Majesty us reigning sovereign of the state of Egypt." "He is recognised by Her Majesty's government as the hereditary ruler of the province of Egypt under the supremacy of the Sultan of Turkey."

Upon all these facts I have arrived at the conclusion that, independently of any other consideration, his Highness the Khedive has failed to establish his claim to exempt his vessel from the process of this Court.

I am not deterred from arriving at the conclusion by the alleged precedents which have been cited to me. The first is a French decision, which was cited to me from Phillimore's International Law, vol. ii. p. 138. It was delivered by the Tribunal Civil de la Seine, which tribunal carries with it a respectable though not an overwhelming authority. That tribunal declined to entertain an action against Mehemet Ali, as Viceroy of Egypt, for 100,000 francs, alleged to be due to M. Solon for his services respecting a school at Cairo. The defence was conducted principally upon the ground that a foreign government (gouvernement Žtranger) could not be sued in an action of that description, which appears to

(1) 2 Sim. 213.

have been founded on an attachment of goods belonging to the Egyptian government. I observe that the principal ground on which the judgment is rested is as follows: "Attendu que toutes les expressions de la demande lui donnent le caract�re personnel et rŽv�lent qu'elle est dirigŽe contre le gouvernement ƒgyptien, et non contre un particulier." The judgment does not seem to me to go beyond the principles that an action will not lie against a foreign government in a matter of state policy; and it may well be that the Egyptian government in this matter were exercising functions coming within the scope of the authority which the Porte had delegated to the Viceroy.

Some other judgments (three apparently) were cited from cases decided, but not reported, before the Common Pleas in 1866 and 1867. (1) An application was made to the Court on behalf of the Pacha of Egypt to prohibit proceedings in the Mayor's Court. This case appears to me clearly to have turned upon a question relating to the authority of the Mayor's Court. A rule nisi having been obtained, and no cause subsequently having been shewn, the rule was made absolute as a matter of course.

In the other cases prohibition was applied for upon two grounds - want of jurisdiction in the Mayor's Court, and the Pacha's being a sovereign prince; and in these cases, as in the other, no opposition having been made, the rule was granted as a matter of course, without any argument or appearance on the other side.

I cannot find anything in these alleged precedents which ought to obstruct the conclusion at which I have arrived, and which I have stated.

But I am unwilling to leave the elaborate argument which has been addressed to me on the other parts of the case without the expression of my opinion; and I will proceed to consider, in the second place, whether, assuming the Khedive to be entitled to claim exemption as a sovereign prince, he is entitled by virtue of that status to claim the exemption of this ship from the jurisdiction of this Court.

In order thoroughly to examine this question as to the immunity of sovereign princes and their representatives from the jurisdicdiction

(1) Melanidis v. Ismail Pacha; C. P. June 6, 12, 1866; July 12, 1866; Jan. 16, 1867.

of the tribunals of the state in which they happen to be, and to avoid the consequences of a false theory on this subject, it is expedient to state with precision the foundation upon which this privilege rests. Upon principles of general jurisprudence the presence of a person or of property within the limits of a state founds the jurisdiction of the tribunals of that state. "Subjectio autem, ut modo indicabam," as Bynkershoek says, "duplex est, altera person¾, altera rei, in imperio, quo de agitur, sit¾, et ex utraque forum sortimur." (De Foro Legatorum, c. ii. Opera Minora, ed. 1752, p. 435.) (1) The sovereign prince or his representative is exempted from the operation of this principle, absolutely, so far as his person is concerned, and with respect to his property, at least so far as that property is connected with the dignity of his position and the exercise of his public functions.

Upon what grounds is this exemption allowed? Not upon the possession on behalf of the sovereign of any absolute right in virtue of his sovereignty to this exemption; such a right on his part would be incompatible with the right of the territorial sovereign; and not, as is sometimes carelessly said, upon the ground that he and his property are to be considered as still remaining in his own territory. This is indeed the fiction of law expressed in the term "exterritoriality," by which the nature of the immunity is illustrated; but it is illogical and inaccurate to consider it as the ground of that immunity. The true foundation is the consent and usage of independent states, which have universally granted this exemption from local jurisdiction in order that the functions of the representative of the sovereignty of a foreign state may be discharged with dignity and freedom, unembarrassed by any of the circumstances to which litigation might give rise. Bynkershoek says:- "Quod legati fori pr¾scriptione utantur, una ratio est, ne impediatur legatio, hoc est, ne legati persona Principi suo fiat inutilis; at inutilis non erit, bonis detentis, inutilis non erit, quamvis in foro nostro litiget, quamvis vincatur, quamvis ea ipsa bona, pignori capta, in causam judicati, distrahantur, et inde satisfiat creditoribus. Non ex person¾, sed ex bonorum subjectione id judicium subsistit, idque perinde agetur, atque si legatus

(1) Bynkershoek, Opera omnia, vol. 2, p. 148, ed. 1767.

apud nos legatus non esset" (De Foro Legatorum, cap. xvi. Opera Minora, ed. 1752, p. 512). (1)

The same doctrine is laid down in the case of The Schooner Exchange v. M'Faddon (2) decided, in 1812, by the Supreme Court of the United States, and the case of The Santissima Trinidad (3), decided by the same tribunal in 1822.

As far as my researches have extended, I cannot find any country in which this immunity has been carried to a greater length or more favourably considered than in England, from the time at least of the passing of the statute 7 Anne, cap. 12, in the year 1708, to the decision of the Queen's Bench, in 1859, in the case of The Magdalena Steam Navigation Co. v. Martin. (4) The cases principally relied on before me have been Barbuit's Case (5), decided by Lord Chancellor Talbot in 1737, as to which it is enough to state the observation of Mr. Justice, afterwards Lord Chief Justice Erle, in The Magdalena Steam Navigation Co. v. Martin (4): "All that is said about an ambassador, in the judgment in that case, is extrajudicial. The decision was that the applicant, being only a consul, was not entitled to the privilege, whatever that might be, of an ambassador."

The cases of Triquet v. Bath (6), decided by Lord Mansfield in 1764, and Heathfield v. Chilton (7), decided by the same authority in 1767, are, both of them, remarkable for Lord Mansfield's observations upon the statute of Anne. In the first case he observes: "This privilege of foreign ministers and their domestic servants depends upon the law of nations. The Act of Parliament of 7 Anne, c. 12, is declaratory of it. All that is new in this Act is the clause which gives a summary jurisdiction for the punishment of the infractors of this law." And in the second case he says: "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 Anne, c. 12, did not intend to alter, nor can alter, the law of nations."

(1) Bynkershoek, Opera omnia, vol. 2, p. 169, ed. 1767.

(2) 7 Cranch, U.S. Supreme Court Rep. 116.

(3) 7 Wheaton, 283.

(4) 2 E. & E. 94; 28 L. J. (Q.B.) 310.

(5) Cases tempore Talbot, 281.

(6) 3 Burr. 1478.

(7) 4 Burr. 2015.

But, in truth, the whole law upon this subject, so far as English decisions are concerned in it, will be found completely exhausted in the arguments and decisions in the cases of Taylor v. Best (1), decided by the Court of Common Pleas in 1854, and The Magdalena Steam Navigation Co. v. Martin (2), decided by the Court of Queen's Bench in 1859. In the former case the Court held that a secretary of legation might voluntarily abandon his privilege, and that in a case where he was sued jointly with others and appeared to the process, and allowed the suit to go on to an advanced stage without offering any objection, and where there did not appear to be any intention on the part of the plaintiff to interfere with either the person or the property of the ambassador, and where the action might proceed to its ultimate termination without any such molestation or interference, it could not give effect to a claim of privilege. In the second case the defendant pleaded his privilege as envoy, and, among other things, that he had not waived or disentitled himself to the exemptions appertaining to a public minister. He had been a shareholder in a certain company, at the winding-up of which he was called upon to contribute in respect of his shares. Lord Campbell delivered an elaborate judgment, which concluded in these words: "It certainly has not hitherto been expressly decided that a public minister duly accredited to the Queen by a foreign state is privileged from all liability to be sued here in civil actions; but we think that this follows from well-established principles, and we give judgment for the defendant." The judgment was mainly founded upon the principle laid down by Grotius (De Jure Belli et Pacis, lib. ii. c. xviii. s. ix. 1 (3), "Omnis coactio abesse a legato debet;" and it was holden that the service of process upon him and the necessities of a defence could not take place, to use Lord Campbell's words, "without coactio."

Bynkershoek agrees with the opinion of Grotius expressed in the general terms just cited, but appears to differ from Lord Campbell as to what would amount to "coactio," and, to say the least of it, to doubt very much whether the "in jus vocatio" could be so considered.

(1) 14 C. B. 487; 23 L. J. (C.P.) 89.

(2) 2 E. & E. 94; 28 L. J. (Q.B.) 310.

(3) Grotius, De Jure Belli et Pacis, Cambridge edition, 1853, vol. 2, p. 216.

The result of these decisions appears to me to be that the ambassador is personally exempt from the service of all process in a civil cause and from any action which renders such service necessary.

I should observe here that the argument in behalf of the defendant has been conducted upon the principle that the law as to the privileges of the ambassador applies with equal force to the sovereign, and I agree with that proposition. "... Major non est sanctitas," says Bynkershoek, "mandatarii quam mandantis, si res suas ipse velit agere" (De Foro Legatorum, c. iii., Opera Minora, p. 445, ed. 1752. (1) But how is the argument to be applied to this case, in which the person claiming the rights of a sovereign can neither send nor receive an ambassador?

The conclusion, however, to which I have come, as to the privileges of an ambassador, by no means disposes of the question now before me.

It remains to be considered whether there may not be a proceeding in rem (a mode of proceeding which Courts of Admiralty have adopted from the civil law) against property of the sovereign or ambassador which is free from the objections fatal to the other modes of procedure which I have mentioned. It is worthy of observation that the counsel for the ambassadors in the cases both of Taylor v. Best (2) and The Magdalena Steam Navigation Co. v. Martin (3) were careful to guard themselves from saying that such a suit might not be instituted. "All the authorities," says Mr. Willes - counsel for the plaintiff in the case of Taylor v. Best (2) - who certainly would have omitted no point in favour of his client, "cited on the other side may be explained by observing the distinction between our laws and the laws of those countries where the civil law obtains. There is nothing in this country analogous to the proceedings of those courts ad fundandam jurisdictionem, except the proceeding by what is called foreign attachment in the Lord Mayor's Court of London. Where the civil law prevails, the proceeding may be had against the person of the defendant if within the jurisdiction, or, if not, against his goods or his lands, if any, and the suit may go on without in

(1) Bynkershoek Opera omnia, vol. 2, p. 151, ed. 1767.

(2) 14 C. B. 487; 23 L. J. (C.P.) 89.

(3) 2 E. & E. 94; 28 L. J. (Q.B.) 310.

any way touching the person: the proceeding is in rem" (at page 510-511). And Sir Fitzroy Kelly, counsel for the ambassador in the case of The Magdalena Steam Company v. Martin (1), seems to have admitted that proceedings taken in rem would stand upon a different principle.

So Bynkershoek, "Scilicet in regionibus, ubi ob bona convenimur, et ex eorum arresto forum sortimur, nullus dubito, quin et legatorum bona arresto detineri, et per hoc ipsi in jus vocari possint. Bona, dico, sive immobilia, sive mobilia, dummodo neque ad personam ejus pertineant, neque tanquam legatus, possideat, uno verbo, sine quibus legationem recte obire potest. Hoc tamen, ob person¾ sanctitatem, temperamento, ne quid plus capiatur quam legatus debet, et ne quid, quod ille non civiliter possidet, et si quod captum est, qu¾ratur, ad legati personam munusve pertineat, necne, semper pro legato benignior fiat interpretatio" (De Foro Legatorum, cap. xvi. Opera Minora, ed. 1752, p. 510. (2)

In the judgment in Taylor v. Best (3), Jervis, C.J., uses this language: "It is said - and perhaps truly said - that an ambassador or foreign minister is privileged from suit in the courts of the country to which he is accredited, or, at all events, from being proceeded against in a manner which may ultimately result in the coercion of his person, or the seizure of his personal effects necessary to his comfort and dignity, and that he cannot be compelled in invitum, or against his will, to engage in any litigation in the courts of the country to which he is sent. But all the foreign jurists hold that, if the suit can be founded without attacking the personal liberty of the ambassador or interfering with his dignity or personal comfort, it may proceed. Various passages have been cited to shew that, in countries where the civil law prevails and where jurisdiction can be founded by a proceeding in rem in the first instance, where there are houses or lands which are immoveable, that may be taken to found the jurisdiction, the suit may proceed. Moveable goods, too, which are unconnected with the personal comfort and dignity of the ambassador may be taken for the same purpose."

(1) 2 E. & E. 94; 28 L. J. (Q.B.) 310.

(2) Bynhershoek Opera omnia, vol. 2, p. 168, ed. 1767.

(3) 14 C. B. 487, 521; 23 L. J. (C.P.) 89.

And in The Magdalena Steam Navigation Co. v. Martin (1) Lord Campbell, after quoting the authority of Bynkershoek, says:

"In countries where there may be a citation by seizure of goods, if an ambassador loses his privilege by engaging in commerce, he not only may be cited, but all his goods unconnected with his diplomatic functions may be arrested to force him to appear, and may afterwards, while he continues, be taken in execution on the judgment."

I think, therefore, that I am not prevented from holding, what it appears to me the justice of the case would otherwise require, that proceedings of this kind, in rem, may in some cases at least be instituted without any violation of international law, though the owner of the res be in the category of persons privileged from personal suit.

In the passage from Bynkershoek which I have already cited, it will appear what kinds of property cannot in the case of a sovereign or ambassador be subject to a proceeding in rem; and the principles to be collected from various other passages in his great work, De Foro Legatorum, combine to establish this proposition of international law, namely, that a proceeding in rem cannot be instituted against the property of a sovereign or ambassador if the res can in any fair sense be said to be connected with the jus coron¾ of the sovereign or the discharge of the functions of the ambassador.

Upon these principles ships of war cannot be seized by a creditor of the sovereign to whom they belong; and we learn from Bynkershoek that three vessels (2) belonging to the King of Spain, having been seized by his creditors in the port of Flushing in 1668 A.D., were ordered to be released by the States-General, it being suggested that the remedy of the creditors was to obtain an order for reprisals from the state (De Foro Legatorum, cap. iv, Opera Minora, ed. 1752, p. 448). (3)

It is, however, by no means clear that a ship of war to which salvage services have been rendered may not jure gentium be liable to be proceeded against in a Court of Admiralty for the remuneration due to such services. It is very remarkable that Lord

(1) 2 E. & E. 94, 114; 28 L. J. (Q.B.) 310.

(2) "Ejus regni naves bellicas."

(3) Bynkershoek, Opera Omnia, vol. 2, p. 152, ed. 1767.

Stowell declined to pronounce any opinion upon this point in the case of The Prins Frederik (1), though it appears that he had upon principles of English law previously declined to entertain a suit of this kind attempted to be instituted by a British subject against a British man-of-war: The Comus. (2)

On the same principle in America the Supreme Court of Massachusetts has holden that a lien allowed by the law against a private person cannot be enforced against a vessel the title of which has vested in the United States: Briggs v. The Light Boats. (3) Upon the same principle, in Wadsworth v. The Queen of Spain (4) and De Haber v. The Queen of Portugal (5), proceedings according to the custom of foreign attachment in the City of London instituted against property belonging to these sovereigns in their public capacity by the holders of Spanish and Portuguese bonds were stayed by prohibition.

In the United States v. Wilder (6) a question arose whether property belonging to the government was liable to make contribution in a case of general average. Mr. Justice Story said: "It is said that in cases where the United States are a party, no remedy by suit lies against them for the contribution; and hence the conclusion is deduced that there can be no remedy in rem. Now, I confess that I should reason altogether from the same premises to the opposite conclusion. The very circumstance that no suit would lie against the United States in its sovereign capacity would seem to furnish the strongest ground why the remedy in rem should be held to exist." And again, "I cannot therefore but think that the circumstance that the United States can in no other way be compelled to make a just contribution of its share in the general average, so far from constituting a ground to displace the lien created by the maritime law, does in fact furnish a strong reason for enforcing it. The learned judge then referred to the cases of The Comus (2) and The Prins Frederik (1), and observed, "A distinction was taken in that case which indeed has been often taken by writers on public law as to the exemption of

(1) 2 Dods. 451.

(2) Referred to in 2 Dods. 464.

(3) 11 Allen (Massachusetts Rep.) 157.

(4) 17 Q. B. 171; 20 L. J. (Q.B.) 488.

(5) 17 Q. B. 196; 20 L. J. (Q.B.) 495.

(6) 3 Sumner U. S. 308, 312, 313, 315.

certain things from all private claims; as, for example, things devoted to sacred, religious, and public purposes; things extra commercium et quorum non est commercium. That distinction might well apply to property like public ships of war, held by the sovereign jure coron¾, and not be applicable to the common property of the sovereign of a commercial character, or engaged in the common business of commerce." And again he says: "In the case of The Schooner Exchange v. McFaddon (1) it was considered, by the court, that the ground of exemption of the ships of war of a foreign sovereign, coming into our ports, from all process, was founded upon the implied assent of our government. But it was not decided that the other property of a foreign sovereign, not belonging to his military or naval establishment, was entitled to a similar exemption."

A strong illustration of the distinction between the jurisdiction in rem and in personam is supplied by the decision of Mr. Justice Story in the case of Clarke v. New Jersey Steam Navigation Company (2): "The real point of controversy," he says, "is whether the respondents being a corporation created by and having its corporate existence and organisation in the state of New Jersey, is, as a foreign corporation, liable to a suit in personam in the Admiralty in this district (3), not, directly, but indirectly through its attachable property here, so as to compel the appearance of the corporation to answer the suit, or at all events to subject the property attached to the final judgment and decree of the court. The whole argument turns upon this proposition, that there is a distinction between the case of a private person and that of a corporation. The former is suable in the Admiralty by process of attachment, in a suit in personam, against his property found in the district, although he may not personally be found within the district; whereas a corporation is liable to be sued only in the state where it has its corporate existence, and from which it derives its charter, and not elsewhere, although its property may be found in the district where the suit is brought." Then follow these significant words: "If the present were a suit in rem against the property to enforce a right

(1) 7 Cranch U. S. Supreme Court Rep. 116.

(2) 1 Story, 531, 537.

(3) The district of Rhode Island.

of property or a lien, or to subject it, as the offending thing" - the expression is remarkable - "(as in cases of collision), to the direct action of the court, the case could not admit of any real doubt; for in all proceedings in rem, the Court having jurisdiction over the property itself, it is wholly unimportant whether the property belongs to a private person or to a corporation, to a citizen or to a foreigner, to a resident or to a non-resident, to a domestic or to a foreign corporation. In each and in every such case the jurisdiction is complete and conclusive."

I am disposed to hold that, within the ebb and flow of the sea, in the case of salvage the obligatio ex quasi contractu attaches jure gentium upon the ship to which the service has been rendered, and in the case of collision the obligatio ex quasi delicto attaches jure gentium upon the ship which is the wrong-doer, whatever be her character, public or private, and such, I think, was the inclination of Lord Stowell's mind in the case of The Prins Frederik (1), and in the case of The Swift (2), to which I will presently advert. But it is not necessary in the present case to travel to this goal, because a nearer one is at hand. This ship cannot claim exemption as a ship of war. She carries, indeed, the flag of the Porte; but she is not equipped in any sense for war, nor does she pretend to be so.

Apart from the question of the liability jure gentium, to which I have adverted, I am not prepared to deny that the private vessel (for instance, the yacht of the Sultan), though equipped for pleasure and not for war, would be entitled by international comity, operating (at least so long as it is not withdrawn by the state conceding it) as international law, to the same immunity as a ship of war; though dicta to the contrary may be found in the writings of some jurists.

But it seems to me idle to contend, in the face of the evidence before me, that these six or seven ships are not trading vessels to all intents and purposes, though when engaged in their regular employment they carry mail bags. But, again, I am not obliged to predicate this character of all these vessels; the one before me is actually chartered to a British subject, and has been by him publicly advertised like any other merchant vessel to carry

(1) 2 Dods. 451.

(2) 1 Dods. 320, 339.

cargo, for which he is to receive the freight. That this cargo is liable to a lien for salvage has not been denied; but suppose, under the 6th section of the Admiralty Court Act, 1861, 24 Vict. c. 10, the owners of the cargo were to bring a suit in rem against the ship for damage to the cargo, must that suit be dismissed, and justice so far denied, because the ship was only chartered, and was not, according to the technical term of English law, demised to the British subject, and therefore remains the property of the Khedive? Such has been necessarily the contention of the counsel for the Khedive. I cannot assent to it; the mere statement appears to me to carry with it a refutation of the argument.

It was ingeniously argued by Mr. Cohen that it mattered not whether the suit was in rem or in personam, because the object of the jus in rem was to enforce the jus in personam; and the cases of The Druid (1), and The Thetis (2), were cited in support of this proposition. But this argument in its relation to the present case appears to me fallacious. The object of international law, in this as in other matters, is not to work injustice, not to prevent the enforcement of a just demand, but to substitute negotiations between governments, though they may be dilatory and the issue distant and uncertain, for the ordinary use of courts of justice in cases where such use would lessen the dignity or embarrass the functions of the representatives of a foreign state; and if the suit takes a shape which avoids this inconvenience, the object both of international and of ordinary law is attained - of the former, by respecting the personal dignity and convenience of the Sovereign; of the latter, by the administration of justice to the subject.

The universally acknowledged exceptions to the general rule of the sovereign's immunity when examined prove the truth of this proposition. For instance, the exemption from suit is admitted not to apply to immoveable property. One reason may be that the owner of such property has so incorporated himself into the jural system of the state in which he holds such property, that the argument of general inconvenience to states from allowing the exemption outweighs the argument from convenience on which the exemption in other matters is bottomed. But another reason surely is that which seems to be suggested by Jervis, C.J.,

(1) 1 W. Rob. 391.

(2) 3 Maritime Law Cases 357.

in Taylor v. Best (1), that such a suit can be carried on without the necessity of serving process upon the sovereign, or of interfering in any way with such personal property as may be requisite for the due discharge of his functions. The exemption must be taken away for one of three reasons, either those which I have suggested, or a third, that the acquisition of immoveable property amounts to a waiver of privilege. Take another instance: the sovereign who is plaintiff in a suit cannot escape from the necessity of answering interrogatories, and being subject to the service of process, and to counter-demands, such as the reconventiones of the Roman law; which law justly says, "Qui non cogitur in aliquo loco judicium pati, si ipse ibi agat, cogitur excipere actiones, et ad eundem judicem mitti" (Dig. l. v. t. 1-22).

So the Court of Chancery has decided that, though it will not make an order against an ambassador who does not submit to its jurisdiction, yet it will restrain a third party from giving to him a fund, the right to which is in dispute, notwithstanding his title to the fund may be absolute in law: Gladstone v. Musurus Bey. (2) And, quite recently, in 1872, in the case of Larivi�re v. Morgan (3), Lord Chancellor Hatherley decided that where a foreign government has made a contract in this country, and has lodged money in the hands of agents in this country for payment of the sums to become due under the contract, he would not refuse relief to the contractor because the contract was with a foreign government, nor because the foreign government would not appear before him; and he ordered the agents to bring the money into court, to be paid out to the contractor on his proving that he had performed his part of the contract.

All these instances of exception from the general rule of the sovereign's immunity seem to me founded upon the principle which I have stated; and, if so, why should not such proceedings in rem as have been instituted in this case be in accordance with international law? For it must be remembered that this is the law which I have to apply to this suit. No disrespect is shown, no injustice is done to the sovereign, while justice is done to the private suitor.

(1) 14 C. B. 487, 522; 23 L. J. (C.P.) 89.

(2) 1 H. & M. 495; 32 L. J. (Ch.) p. 155.

(3) Law Rep. 7 Ch. 550.

Thirdly, assuming again that the Khedive has a status which entitles him to the privilege claimed, has he by his conduct waived or forfeited that privilege? In the case of The Swift (1) Lord Stowell had to consider whether the King was bound by the Navigation Acts; and after stating some of the difficulties attending the solution of this question, he says: "The utmost that I can venture to admit is, that if the King traded, as some sovereigns do, he might fall within the operation of these statutes. Some sovereigns have a monopoly of certain commodities, in which they traffick on the common principles that other traders traffick; and, if the King of England so possessed and so exercised any monopoly, I am not prepared to say that he must not conform his traffick to the general rules by which all trade is regulated."

Bynkershoek, when he wrote his celebrated treatise De Foro Legatorum, complained (cap. xiv. de legato mercatore, Opera Minora, ed. 1752, p. 500) (2) that in his day the privilege of the ambassador had been greatly abused to cover the trade of the merchant.

I must say that if ever there was a case in which the alleged sovereign (to use the language of Bynkershoek) was "strenue mercatorem agens," or in which, as Lord Stowell says, he ought to "traffick on the common principles that other traders traffick," (3) it is the present case; and, if ever a privileged person can waive his privilege by his conduct, the privilege has been waived in this case.

It was not denied, and could not be denied, after the evidence that the vessel was employed for the ordinary purposes of trading. She belongs to what may be called a commercial fleet. I do not stop to consider the point of her carrying the mails, for that was practically abandoned by counsel. She enters an English port and is treated in every material respect by the authorities as an ordinary merchantman, with the full consent of her master; and at the time of the collision she is chartered to a British subject, and advertised as an ordinary commercial vessel. No principle of

(1) 1 Dods. 320, 339.

(2) Bynkershoek Opera Omnia, vol. 2, p. 165, ed. 1767.

(3) 1 Dods. at p. 339.

international law, and no decided case, and no dictum of jurists of which I am aware, has gone so far as to authorize a sovereign prince to assume the character of a trader, when it is for his benefit; and when he incurs an obligation to a private subject to throw off, if I may so speak, his disguise, and appear as a sovereign, claiming for his own benefit, and to the injury of a private person, for the first time, all the attributes of his character; while it would be easy to accumulate authorities for the contrary position (see especially KlŸber Europ. Všlkerrecht, § 210 (1), and authorities cited in note).

Upon all grounds therefore, namely,

First, that his highness the Khedive, however exalted his position and distinguished his rank, has failed to establish that he is entitled to the privileges of a sovereign prince, according to the criteria of sovereignty required by the reason of the thing, and by the usage and practice of nations as expounded lay accredited writers upon international jurisprudence;

Secondly, that, on the assumption he is entitled to such privilege, it would not oust the jurisdiction of this Court in the particular proceeding which has been instituted against this ship;

And, thirdly, that, assuming the privilege to exist, it has been waived with reference to this ship by the conduct of the person who claims it;

I pronounce against the protest, and I think I must in justice to the suitor give him the costs of these proceedings.

Having regard to the importance of the case, if any leave of the Court be required in order to appeal from this decision, I will readily give the requisite permission.

(1) KlŸber, Droit des gens moderne de l'Europe, nouvelle Ždition par M. A. Ott. Paris, 1861, pp. 273, 274.

Solicitors for defendants: McLeod & Watney.

Solicitors for plaintiffs: Clarkson, Son, & Greenwell.