but Grotius, lib. 3, c. 7, § 4, delivers a decisive opinion, that incorporeal rights pass as well as corporeal. Therefore if this money is considered merely as a debt, the State of Maryland has a right to

it. But money in the funds is not like a mere debt, but like money in a bureau; where it can be had, when called for. The definitive treaty provides, that creditors shall meet with no impediment on either side in recovering bona fide debts; and if the subjects of the State have that right individually, they must have it in their collective capacity as a Province or a Nation. There can be no lien upon this particular fund in consequence of the confiscation. For that pur

pose it ought to appear, that the property confiscated [* 428] was applied in payment of those bills. All liens must be by contract express or implied or by act of law. It is a political injury; the subject of reprisal or treaty. As to Harford's claim the province could not forfeit the money of individuals. He could only claim confiscations for crimes: but there could be no confiscation of the whole State. If the crown has released its right, it cannot be contended, that the proprietary has not. If the old Government is gone, he is gone, as a part of it. There being no claim now by any of the bill holders, they must be presumed to have been paid by some other mode. There is a high probability, that none of the bills exist; and there are one or two acts of the State declaring, that if they are not brought in by a limited time, they shall be considered as not existing. This is not the case of a corporation; which is very different from a province or state: but supposing it is so, if a corporation takes a new name, form, or quality, its rights and franchises are not removed: Haddock's Case, Sir T. Raym. 439. 1 Vent. 355. Luttrel's Case, 4 Co. 87, b. The Corporation of Scarborough's Case, 3 Lev. 237. The Corporation of Colchester's Case, 3 Burr. 1866. The treaty of peace may be considered in the nature of a new charter.

Mr. Lloyd, Mr. Fonblanque, and Mr. Campbell, for the representatives of Russell and the other partners, Defendants. There is a strong analogy between this State and a corporation. From 1776 to 1783 they were in' the eye of this country dissolved: The King v. Pasmore, 3 Term Rep. B. R. 199. Then any of their real property must have gone to the Crown; and by parity of reasoning, though escheat does not apply to this species of property, yet it ought to be considered as having gone back to the Crown, and as now belonging to it; Com. Dig. 3, tit. Franchise (G. 3, 4.) In Ogden v. Folliott, 3 Term Rep. B. R. 727, and which went to the House of Lords, it was held, that acts done during the rebellion in America were not to be considered as acts of a sovereign State; but were a mere nullity in the Courts of Law in this kingdom; and Lord Kenyon intimated a strong opinion, that if he was to consider the confiscation of the property of the Loyalists otherwise than as torti

the instrument to the Thessalians. The Thebans upon their restoration by Cassander demanded the debt.

ous, he must consider those Loyalists as guilty of high treason against the States of America.

[* 429]

* Lord CHANCELLOR [LOUGHBOROUGH]. I do not consider the decision of the Court of King's Bench as going upon that ground. I cannot make out that idea to amount to more than reprisal; which cannot be discussed in a Court of Justice. There is a distinct and known instance. When the Duchy of Normandy was taken from the Crown of England in the reign of King John, the lands of the Normans in England were seized by the Crown, till the lands of the English in Normandy should be restored to them; and were or ought to have been granted to those, who suffered but it must be by the intervention of the State. The Court of Common Pleas (a) decided Folliott v. Ogden (1) upon a clear ground; that confiscation in a foreign country cannot operate upon property here; that no nation executes the criminal judgments of another.

For the Defendants. If this fund does not belong to the Crown, these Defendants have a specific lien upon it by the application of their property in discharge of the bills, for which this stock was pledged; and it is sufficient, that the appropriation of the property confiscated appears by the Acts of Assembly produced by the Plaintiffs.

Mr. Hardinge and Mr. King, for the Defendant Grove. This Defendant, though a mere trustee, retains his legal right here as well as at law, till some other persons can take it from him by their own strength (2). He has parted with it for safe custody only as between him and these Plaintiffs: but that is no prejudice to his legal right. In Burgess v. Wheate, 1 Black. 123, Lord Northington adverted to the case of a grant of a perpetual rent and the death of the grantee without any heir: there being nobody to call for the rent out of the hands of him in possession, he holds without payment of the rent. In that case a bare trustee did keep the estate. Certainly Lord Thurlow in Middleton v. Spicer, 1 Bro. C. C. 201, did affirm, that a bare trustee could not take a beneficial interest. There is no such prerogative, that the Crown can take any personal property out of

(a) Lord Loughborough, while Chief Justice of the Common Pleas, gave an opinion in this case. The doctrine was affirmed by Lord Ellenborough in a subsequent case. Wolff v. Oxholm, 6 M. & S. 99. And it has been recently promulgated by Lord Brougham in clear and authoritative terms. The ler loci, he says, must needs govern all criminal jurisdiction from the nature of the thing and the purpose of the jurisdiction. Warrenden v. Warrenden, 9 Bligh, 119. It has also been frequently recognized in the United States. The Antelope, 10 Wheat. 66, 123; Scoville v. Canfield, 14 Johns. 338; sce, also, The State v. Knight, Taylor, 65. Upon the same ground, the Supreme Court of Massachusetts has held, that a person, convicted of an infamous offence in one State is not thereby rendered incompetent as a witness in other States. Commonwealth v. Green, 17 Mass. 515. The latter decision, however, has been questioned with powerful reasons. Chase v. Blodgett, 10 N. Hamp. 22. The local character of penal laws is most clearly treated in Story, Conflict of Laws, § 619-625.

(1) 1 H. Black. 123.

(2) Soe Williams v. Lord Lonsdale, post, 752; Walker v. Denne, ante, vol. ii. 170.

the hands of the person in possession of it, because no one can claim it beneficially. In Burgess v. Wheate Lord Northington mentioned Sandy's Case as a decisive authority to the contrary.

[* 430] * Lord CHANCELLOR [LOUGHBOROUGH]. Lord Thurlow determined in Middleton v. Spicer, that where the executor is a trustee, and there is no next of kin, he is a trustee for the Crown. In Burgess v. Wheate there was a terre-tenant.

Mr. Mitford and Mr. Alexander, for the Defendant Harford. Upon Ogden v. Folliott and other cases the Act of 1780 could have no operation upon property in this country. The assent of this Defendant was as necessary to the disposal of this stock, as here the King's assent would be necessary, if it was to be at the disposal of Parliament; for the proprietary was as much a part of that legislature. The treaty ceded nothing but the land, territorial rights, and certain rights, which are specified; and that specification shows, nothing, that was not specified, was intended. All the rights, the inhabitants of Maryland had before, were not ceded: for instance; the right to be natural born subjects of Great Britain and Ireland was not ceded. The King had no right in this stock or the disposition of it before the treaty: till which it was in the two Houses of Assembly with the consent of the Lord and proprietary. The arguments from the writers upon the Law of Nations upon the conquest of one nation by another assume, that Maryland was a nation; which it was not. The true state of the question is, that part of a nation took from the State, of which it originally formed part, all control, formed itself into a new nation, and insists, that the property of those, who had the government of the country before, should be transferred to it. In that case so much only is conquered as can be absolutely possessed, or is ceded: but where the Old State is totally conquered, the New State becomes the old one; and all the rights are transferred; but upon the ground, that they are idem populas. The ground of the cases of corporations is, that the accession of the new charter did not destroy the former rights, but gave them activity, where from particular circumstances they were incapable of exercise, though they remained clear and undisturbed : but if the corporation had been wholly dissolved, they could only pass by a new grant from the Crown; which was the argument in the Colchester case. That question was only upon the Law of England. Both were created by the Crown: here only the former body was so created: the second arises by the violent acts of indi

viduals in opposition to the Crown. According to The [* 431] King v. Pasmore if * an integral part of the corporation is gone, the corporation cannot supply that integral part, but is dissolved to certain purposes. The Plaintiffs cannot claim except by a transfer from the Old State to the new one; and that fails entirely. The violent acts of the inhabitants can give them no right. No act of his Majesty could or affects to do it. The treaty of peace certainly did not. If there is a specific lien, it extends to this Defendant.

No claim was made on the part of the Crown at the hearing. Lord CHANCELLOR. Before this comes on again, I wish you to consider a question, which has affected my mind during the hearing. The bill is brought by persons stating themselves to be entitled upon good consideration to an interest in Bank Stock in this country in the names of trustees. They derive it from acts, which now from the treaty must be considered acts of a foreign independent State. I wish it to be considered, whether any foreign Sovereign under any denomination can sue in a municipal Court of this country; whether it is not matter of application from State to State. I do not think it easy to find in the old cases (1) any direct and plain authority. In 1 Roll. 133, it is said, such an action would lie: but Lord Coke's doctrine, if pursued farther, will be found to have vanished and to have come to nothing. They were cases in prohibition. The Courts of Law interfered in stopping the suits in the Admiralty Court, where they turned upon matters in their nature to be decided by the common law. It was a claim of goods supposed to be piratically taken from subjects of the King of Spain; but as to one Defendant it was not laid to have been done at sea; there was also in one of the cases (2) a bill in this Court against subjects of England, and a demurrer: the demurrer was referred to the Chief Justice and another Judge; and they were of opinion, the demurrer was good; and then a proceeding took place, anomalous, and which shows the difficulty, that occurred: from the hint in Hobart it is not easy to see what was done: but it seems to have taken this course : they found, the bill could not be sustained; and the Judges were of opinion, that an action should be brought in the Court of Common Pleas by consent; * upon which they directed a suit by consent in Chancery; and upon that proceeding they make some award and satisfaction to the party.

[* 432]

I wish you to consider it a little upon the general principle. The solution of the difficulty by the difference arising from the Plaintiffs being assignees occurred to me. The difficulty of giving costs is avoided; but assignees must rest upon the right of the assignor : and I doubt, whether in a municipal court the right of a sovereign independent State can be recognized.

There is another difficulty, This property in the Bank is to be considered either as the debt or interest of a public company: the produce might as well have been laid out in mortgages and in the purchase of land under a license to hold in mortmain: could either of those interests have been claimed by a sovereign independent State: If not, how will that apply to the case of personal property, if not directly, mediately a public debt from this nation? for Bank stock is a public debt: the 3 per cents are certainly so; and so is Bank stock, because counter-secured by the debt of the Public to the

(1) See all these cases cited in The Nabob of the Carnatic v. The East India Company, ante, vol. i. 382, 383; Dolder v. Lord Hunting field, post, vol. xi. 283. (2) Hob. 113.

Bank. It is now claimed in right of a sovereign independent State, that could neither hold mortgages nor lands here undoubtedly.

Reply. As to the case of mortgages or purchases of land, no mortgage could be made or land purchased by such a body but in the name of trustees. Then it comes to the same question; whether that trust fund must not be disposed of some way or other for the benefit of the Province, by sale or paying the profits.

A sovereign may have personal property in this country. Sovereigns have been often resident here. In the reign of Henry the Seventh, the King of Denmark came here: and the King of Castile was cast on shore, and entertained by an ancestor of the Trenchard family. In the reign of Henry the Eighth the Emperor came over. Could not a sovereign during his residence here have redress for an injury? The right is established by the cases in 1 Roll's Rep. 133. 1 Roll's Abr. 532, tit. Admiralty, 2 Bulst. 322. Hob. 78, 113. Moor, 850, the opinion in Selden's Table Talk, and the case in Reil. Pl. Parl. 143, 159; where the King of Norway sued the King of Scotland for a rent of lands in Scotland substituted for a marriage portion. The guardian of the infant King of Scotland was the other party. That case was taken notice of: and there was a provision, in case the King of Scotland should not appear.

[* 433]

Lord CHANCELLOR. The answer of the King of Scotland was, that he could not be sued in England, because he was a sovereign; (a) and the Magnates would not permit it; and then the war broke out.

Reply. If there is any such incapacity, it must be personal; and in this instance it is removed by the assignment. It is not like The Nabob of the Carnatic v. The East India Company, ante, Vol. I. 371; Vol. II. 56. There perhaps the decree would have been impracticable here the Court has the fund. If this argument holds, the trustee must hold contrary to the trust. Penn v. Lord Baltimore, 1 Ves. 444, was a suit between sovereigns. The State of Ireland was not changed by the alterations made in 1782: till which time it was a dependent kingdom.

:

1797, June 27th. Lord CHANCELLOR (after stating the case). The acts of 1779 and 1780, the object of which, it is obvious, was, not to call in the bills, but to get access to this fund, are both extravagant, even according to the circumstances of the times; for even if there was no interference of the British Government, it was totally impossible for the trustees with any regard to their duty or their in

(a) A public vessel of war, of a foreign sovereign, at peace with the United States, coming into our ports, and demeaning herself in a friendly manner, is exempt from the jurisdiction of the country. The schooner Exchange, 7 Cranch, 116. If a sovereign enters a foreign territory with the knowledge and license of its sovereign, the license, though containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation. A foreign minister is considered as in the place of the sovereign he represents; and therefore not, in point of law, within the jurisdiction of the sovereign at whose court he resides.