In Queen v. Com'rs Treasury, L. R. 7 Q. B. 387, 394, in which the court refused to grant a writ of mandamus to the lords commissioners of the treasury to pay over money in their hands as servants of the crown, Lord Chief Justice COCKBURN said that it did not follow, because the prosecutor had no remedy except that of applying by petition to the crown, or by petition to parliament, that the court could issue a writ of mandamus, and added:

"I take it, with reference to that jurisdiction, we must start with this un questionable principle, that when a duty has to be performed (if I may use that expression) by the crown, this court cannot claim, even in appearance, to have any power to command the crown; the thing is out of the question. Over the sovereign we can have no power. In like manner where the parties are acting as servants of the crown, and are amenable to the crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction."

In Doe v. Roe, 8 Mees. & W. 579; 8. C. Hurl. & W. 159, which was an action of ejectment for a house and lands adjoining Hurst castle, the declaration had been served upon one Watson and upon the board of ordnance. On motion of the attorney general, in behalf of the crown, supported by affidavits that the castle was an hereditary possession of the crown of England, and that the premises sought to be recovered were in possession of the crown, by Watson, who had been placed, by authority of the board of ordnance, as master gunner in charge of the defenses of the castle, which commanded the passage of the Needles, the court of exchequer ordered the declaration to be set aside and all further proceedings stayed. It was contended for the plaintiff that technically the action was trespass against Roe; and that the argument on the other side would go the length of showing that in any case where the defendant in ejectment made an affidavit that the title of the crown came into question the plaintiff would have no resource but in his petition of right. Whereupon the court made these observations: "Lord ABINGER, C. B. The real question is, can an ejectment be tried, the effect of which may be to turn the crown out of possession? ALDERSON, B. The declaration is served on a person occupying as the servant of the crown; this case is not like the case put of lands held under the woods and forests; the present difficulty only arises when, supposing the plaintiff to succeed, the crown would be turned out of possession." Hurl. & W. 160. At the close of the argument, Lord ABINGER said: "It is quite clear the court could not issue any process to turn the crown out of possession; and the only doubt I had was, whether this property was

not, by the operation of the act of parliament, in the possession, not of the crown, but of the board of ordnance. But on looking more fully into the act, my doubt is entirely removed." Baron ALDERSON said: "I am of the same opinion. No ejectment can be maintained against the crown, to turn the crown out of possession by the authority of the crown itself." And Baron ROLFE (afterwards Lord Chancellor CRANWORTH) added: "The question may be tested thus: Suppose there were no trial, but judgment went against the casual ejector, then there would only be a writ to turn the crown out of possession, which clearly cannot be." 8 Mees. & W. 582-3.

The same rule, as well as the essential distinction in actions brought against a servant of the crown holding possession in behalf of the crown, between an action of trespass to recover damages, which might be suffered to proceed, (although the crown might have it removed for that purpose into the court of exchequer,) and an action of ejectment to recover possession of the land itself, which must be absolutely stayed on motion of the attorney general, is clearly recognized in two cases of trespass to recover damages against officers of the crown, removed upon application of the attorney general into the office of pleas of the exchequer for trial. Cawthorne v. Campbell, 1 Anstr. 205, 215; Attorney General v. Hallett, 15 Mees. & W. 97.

In Cawthorne v. Campbell, Chief Baron EYRE, speaking of a case, decided in 1710, of an ejectment brought in the court of queen's bench for lands which were part of the queen's estate, said:

"There was an application to this court to stay the proceedings, and the parties were heard upon it. The attorney general attended, and after the hearing it was put off for a day or two. At length the entry is, that an injunction issued pro domino regina. So that the action was not removed, but simply an injunction went to stay the proceedings. And I think I can see why that was; if the action had been removed, the question could not have been tried, even in the office of pleas, because you cannot try the queen's title in an ejectment. The queen was in possession; her hands must be removed by some other course of proceeding than an ejectment; and therefore it was fruitless to think of removing it, and it remained under an injunction."

So in Attorney General v. Hallett, a case of trespass quare clausum fregit, in which the defendant pleaded that the queen was seized in right of her crown of the locus in quo, Chief Baron POLLOCK said:

"The action of ejectment is prima facie an action merely between subject and subject, and relates to land; yet the prerogative of the crown applies to that; and if the interest of the crown is concerned, an action of ejectment may be removed into this court. It may be said, however, that that does not amount to an authority, because the action does not go on; the reason of that

is that in this court, an action of ejectment will not lie against the crown. The party must proceed by a petition of right. In an action of ejectment, we remove it, although we thereby actually extinguish the action; and therefore that is rather an a fortiori argument for removing this cause, which is sought to be removed for the express purpose of going on with it."

Barons PARKE, ALDERSON, and PLATT concurred; and Baron PLATT clearly distinguished the case of a defendant holding possession in behalf of the crown, from that of a defendant claiming a right in himself only, though under a grant from the crown, saying:

"If the queen herself is in possession, no subject can maintain ejectment against her; the only mode of proceeding is by petition of right. If the subject is in possession, claiming a right under the crown, then the ejectment may be maintained; but, at the suggestion of the attorney general, the proceeding would be brought into this court."

There is a close analogy between these cases and the case at bar. Any action, personal or real, against officers of the sovereign, who justify under a revenue law, may be removed in England into the court of exchequer, and under the acts of congress into the circuit court of the United States. If it is an action of tort to recover damages only, it may there proceed to trial. But if it is an action to recover possession of land, which is in fact held by the sovereign through its officers and agents, and that fact is in due form made known to the court, the proceedings must be stayed.

An action of ejectment brought, as this was, under the Code of Virginia of 1873, c. 131, affects the title to land more than the action of ejectment in England. By that Code the action may not only be brought as before, but it is also made a substitute for the writ of right and all other real actions. Sections 1, 2, 38. It must be brought by and in the name of a person having a subsisting interest in the premises, and a right to recover the premises or the possession thereof; and against the person actually occupying the premises, or, if they are not occupied, against some person exercising acts of ownership therein, or claiming title thereto or some interest therein. Sections 4-6. The only plea allowed is the general issue that the defendant is not guilty of unlawfully withholding the premises claimed. Section 13. The declaration must describe the premises with such certainty that from the description possession can be delivered; and it must state, and the verdict must find, whether the plaintiff's estate is in fee, or for life and whose life, or for years, and the duration of the term. Sections 8, 9, 27. Judgment for the plaintiff is that he recover the possession of the premises according to

the verdict, if there is one, or, if on default or demurrer, according to the description in the declaration. Section 29. Several judgments may be recovered against several defendants occupying distinct parcels of the land. Section 17. And the judgment is conclusive as to the title or right of possession, established in the action, upon the party against whom it is rendered, and all persons claiming under him by title accruing after the commencement of the action. Section 35. The principle that no sovereign can be sued without its consent applies equally to foreign sovereigns and to the sovereign of the country in which the suit is brought. The exemption of the sovereign is not less regarded by its own courts than by the courts of other sovereigns. To repeat the words of Chief Justice TANEY, already quoted: "It is an established principle of jurisprudence, in all civilized nations, that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission."

In the leading case of The Exchange, 7 Cranch, 116, the exemption of a foreign sovereign from being sued in our courts was held to protect one of his public armed vessels from being libeled here in a court of admiralty by citizens of the United States, to whom she had belonged, and from whom she had been forcibly taken in a foreign port by his order. The district attorney of the United States having filed a suggestion, verified by affidavit, that she was a public armed vessel of the emperor of the French, and actually employed in his service at the time of entering our ports, the circuit court, disregarding the suggestion, entered a decree for the libelants. But upon appeal taken by the attorney of the United States, this court, without any inquiry into the title, reversed the decree and dismissed the libel; and Chief Justice MARSHALL, in delivering judgment, said: "There seems to be a necessity for admitting that the fact might be disclosed to the court by the suggestion of the attorney for the United States."

In Vavasseur v. Krupp, 9 Ch. Div. 351, the mikado of Japan, a sovereign prince, bought in Germany shells, made there, but said to be infringements of an English patent. They were brought to England in order to be put on board a ship of war belonging to the mikado, and the patentee obtained an injunction against the agents of the mikado and the persons in whose custody the shells were, restraining them from removing the shells. The mikado then applied to be and was made a defendant in the suit. An order was made by Sir George Jessel, master of the rolls, and affirmed by the court of appeal, that notwithstanding the injunction the mikado

should be at liberty to remove the shells. Lord Justice JAMES said: "I am of opinion that this attempt on the part of the plaintiff to interfere with the right of a foreign sovereign to deal with his publio property is one of the boldest I have ever heard of as made in any court in this country." And, after stating the contention of the plaintiff that the shells were in the possession of persons in England who were minded to make and did make a use of them inconsistent with his patent, he further said: "If they were doing so, then they are liable in an action for damages, and the plaintiff may recover any damages that he may be entitled to. But that does not interfere with the right of the sovereign of Japan, who now asks to be allowed to take his property." Lord Justice BRETT said: "The goods were the property of the mikado. They were his property as a sovereign; they were the property of his country; and therefore he is in the position of a foreign sovereign having property here." "If it is an infringement of the patent by the mikado, you cannot sue him for that infringement. If it is an infringement by the agents, you may sue the agents for that infringement, but then it is the agents whom you sue." "The mikado has a perfect right to have these goods; no court in this country can properly prevent him from having goods which are the public property of his own country."

In the case of The Parlement Belge, 5 Prob. Div. 197, the court of appeal held that an unarmed packet, belonging to the king of the Belgians, and in the hands of officers commissioned by him, and employed in carrying mails, and also in carrying merchandise and passengers for hire, was not liable to be seized in a suit in rem to recover damages for a collision. Lord Justice BRETT, in a considered judgment, stated the real question to be "whether every part of the public property of every sovereign authority in use for national purposes is not as much exempt from the jurisdiction of every court as is the person of every sovereign;" and, after reviewing many American as well as English cases, announced the conclusion of the court thus:

"As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction. This proposition would determine the first ques