270 HARVARD LAW REVIEW Two cases of libel for salvage services arising in federal district courts, Long v. The Tampico ^^ and The Johnson Lighterage Co., No. 24,^^ have followed The Davis ^° where the property proceeded against belonged to a foreign government. In the latter case the court declared the principle on which immunity is granted is the same whether it is the domestic or a foreign sovereign that is involved. The correctness of this statement needs examination. It is evident from Marshall's opinion in The Exchange ^^ that he regarded the various kinds of immunity accorded foreign sovereigns as matters of grace or comity. But in United States v. Clarke ^ Marshall stated it as a matter of "common right" that the United States could not be sued. In Lord Esher's time the immimity of foreign sovereigns and their property was recognized as a right, but this right was simply the outgrowth of international practice. It is reasonably clear, therefore, that the courts did not regard the inamunity of foreign sovereigns as a mere matter of deduction from the well-settled immunity of the domestic sovereign. The im- munity accorded, moreover, has different bounds in the two cases. In the immunity of the local state there can be found nothing anal- ogous to the immunity given under certain circumstances to the private servants of a foreign ambassador. It is said that the principle governing both cases is the same since immunity is granted out of respect for the "independence of sov- ereign authority." In so far as this phrase expresses the policy underlying the decisions, it merely cloaks the difference between them. In cases involving the local sovereign it represents the state's need for executive freedom from harassing litigation. In cases involving the foreign sovereign it indicates the desire to avoid international friction by substituting diplomatic negotiations for the decrees of local tribunals. The decisions of the federal courts based on The Davis ^ must be considered contra to the current of authority in international law.^* In view of the fact that the law has always favored salvage 18 16 Fed. 491 (1883). " 231 Fed. 365 (1916). M Supra. 21 Supra. « 8 Pet. (U. S.) 436 (1834). ^ Supra.
- See the statement in Hall, Inteiinational Law, 7 ed., 211: "If in a question
with respect to property coming before the courts a foreign state shows the property to be its own, and claims delivery, jurisdiction at once fails, except in so far as it may be needed for the protection of the foreign state."
