1784.
caſe in the ſtar-chamber, and is the caſe in this court, there it is lis pendens from the purchaſe of the writ—To this purpoſe he
cited
Hence it was concluded that if proceſs againſt an ambaſſador be null and void, a fortiori, ſhall it be void if iſſued againſt a ſovereign.
That the true reaſon of the miniſter’s exemption from proceſs is the independence and ſovereignty of the perſon he repreſents. And although by engaging in trade, he may ſo far diveſt himſelf of his public character, as to ſubject theſe goods to attachment, yet in every caſe where he repreſents his maſter, his property is ſacred. But a ſovereign cannot ſubject himſelf by implication: he muſt do it expreſsly.
That though the goods of a ſovereign, as well as of an individual, might be liable for freight, or duties, or ſubject to forfeiture; yet in thoſe caſes, there was a lien on the goods, they were anſwerable, and the proceſs was in rem: in this caſe, it was in perſonam; and the goods were attached merely to compel the party’s appearance to anſwer the plaintiff’s demand. And no ſovereign would ſubmit to the indignity of doing this.
Hence it was inferred that the writ was a mere nullity.
II. Upon the ſecond point, authorities were read to explain the caſe produced by the plaintiff’s council, and to ſhew a diſtinction between an erroneous and a void writ. That the ſheriff was bound to execute and return the writ, although erroneous, if the court had juriſdiction. But when the court had no juriſdiction, the writ was void, and the ſheriff was a treſpaſſer if he dared to obey it; a void authority being the ſame as none. That in England, the ſheriffs were never obliged to return a writ, if upon ſhowing cauſe, it appeared that the defendant was a public miniſter, or one of his domeſtics. 5 Bac. 431. Salk. 700. 2 Barnes. 1 Wils. 20.
That ſuppreſſing the writ was not making the ſheriff judge, becauſe he was obliged to aſſign a reaſon for ſo doing: and on the legality of that reaſon the court was now to determine.
He added, that if the ſheriff had attached the goods, he was liable to puniſhment, and to compel him to return his proceedings, was to oblige him to put his offence upon record, and to furniſh teſtimony againſt himſelf.
He finally obſerved, that the writ was void, or it was not. If void, the ſheriff need pay no attention to it: if not void, he was obliged to execute it at all events; and if ſo, theſe inconveniencies would follow. That any diſaffected perſon, who happened to be a creditor of the United States, might injure our public defence, and retard or ruin the operations of a campaign; that he might iſſue an attachment againſt the cannon of General Waſhington, or ſeize the public money deſigned for the payment of his army. That the ſtates united or ſeveral, would never ſubmit to put in ſpecial bail (which muſt be done to prevent judgment) and to anſwer before the tribunal of a ſiſter ſtate.
That the plaintiff was under no peculiar inconvenience. Every creditor of this ſtate or of the United States lay under the ſame. If his demand was juſt, Virginia would, upon application, do what was right; if not, and flagrant injuſtice was done him, he might (if a ſubject of this ſtate, and entitled to its protection) complain to the executive power of Pennſylvania.
He concluded with obſerving on the importance of ſuppreſſing ſuch meaſures as the preſent, at their firſt appearance, and of preſerving the rights of ſovereign ſtates inviolate—and prayed that the rule might be diſcharged.
The counſel for the plaintiff inſiſted, that though Virginia was a ſovereign ſtate, yet this ought not to exempt her property in every caſe from the laws and juriſdiction of another ſtate. That ſovereignty ſhould never be made a plea in bar of juſtice: and that the true idea of prerogative, was the power of doing good, and not, as it had ſometimes been expreſſed, “the divine right of doing ill.”
That every perſon, and all property within this ſtate, was ſubject to its juriſdiction, by ſo being within it, except a ſovereign power, and the repreſentative of a ſovereign power, with his domeſtics and effects, which he holds as repreſentative.
That if an ambaſſador engages in trade, his property ſo engaged is liable to attachment, Vat B. IV ſect. 114. and if a ſovereign ſtate turns merchant, and draws or accepts bills of exchange, its property ought in like manner to be ſubject
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