1784.
in the Common Pleas in England—But where the original writ iſſues out of the court, returnable into the ſame court, as was the
longing to that ſtate, was attached in Philadelphia. The delegates in Congreſs from Virginia, conceiving this a violation of the laws of nations, applied to the ſupreme executive council of Pennſylvania, by whom the ſheriff was ordered to give up the goods.
The council for the plaintiff, finding that the ſheriff ſuppreſſed the writ, and made no return of his proceedings, obtained, September 20, 1781, a rule that the ſheriff ſhould return the writ, unleſs cauſe was ſhewn.
They contended that the ſheriff was a miniſterial officer: that he could not diſpute the authority of the court out of which the writ iſſued, but was bound to execute and return it as his own peril. 6 Co. 54.
That thoſe caſes in England, where the ſheriff was not compelled to return writs iſſued againſt ambaſſadors or their retinue, depended upon the ſtat. 7. Ann. c. 12. which did not extend to this ſtate.
The Attorney General, on the part of the ſheriff, and by direction of the ſupreme executive council, ſhewed cauſe, and prayed that the rule might be diſcharged.
He premiſed, that though the ſeveral ſtates, which form our federal republic, had, by the confederation, ceded many of the prerogatives of ſovereignty to the United States, yet theſe voluntary engagements did not injure their independence on each other; but that each was a ſovereign, “with every power, juriſdiction, and right, not expreſsly given up.”
He then laid down two poſitions. Firſt: that every kind of proceſs, iſſued againſt a ſovereign, is a violation of the laws of nations; and is in itself null and void. Secondly: that a ſheriff cannot be compelled to ſerve or return a void writ.
I. The firſt point he endeavoured to prove, by conſidering firſt the nature of ſovereignty; and ſecondly, the rules of law, relative to proceſs iſſued againſt ambaſſadors, the repreſentatives of ſovereigns.
He ſaid, that all ſovereigns are in a ſtate of equality and independence, exempt from each other’s juriſdiction, and accountable to no power on earth, unleſs with their own conſent.
That ſovereigns, with regard to each other, were always conſidered as individuals in a ſtate of nature, where all enjoy the ſame prerogatives, where there could be no ſubordination to a ſupreme authority, nor any judge to define their rights, or redreſs their wrongs.
That all juriſdiction implies ſuperiority over the party, and authority in the judge to execute his decrees: but there could be no ſuperiority, where there was a perfect equality—no authority, where there was an entire independence.
That the king of England, as ſovereign of the nation, is ſaid to be independent of all, and ſubject to no one but God: and his crown is ſtiled imperial, on purpoſe to aſſert that he owes no kind of ſubjection to any potentate on earth. No compulſory action can be brought againſt him, even in his own courts.
That a ſovereign, when in a foreign country, is always conſidered by civilized nations, as exempt from its juriſdiction, privileged from arreſts, and not ſubject to its laws.
Hence this inference was drawn, that the court having no juriſdiction over Virginia, all its proceſs againſt that ſtate, muſt be coram non judice, and conſequently void. 1 Vatt. p. 2. 133. 2. Vatt. 158. 1 Blackſt. 141. 5 Bac. 450.
It was then obſerved, that there being no inſtance in our law books, of any proceſs againſt a ſovereign, it was proper to conſider the rules of law relative to proceſs againſt their repreſentatives.
The ſtatute of Ann was read, with the hiſtory of the outrage that gave birth to it; which act declares that all proceſs againſt the perſon, or goods, or domeſtics of an ambaſſador ſhall be null and void, and all concerned in iſſuing or serving it, ſhould be puniſhed as infractors of the laws of nations.
That this ſtatute was not introductory of any rule, but barely declaratory of the laws of nations. That there was nothing new in it, except the clauſe perſcribing a ſummary mode of puniſhment. That it was a part of the common law of the land before, and conſequently extended to Pennſylvania. 4 Blackſt. 67. 3 Burr. 1480. 4 Burr. 2016.
