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II

THE EQUALITY OF STATES IN THE DECISIONS OF NATIONAL COURTS

The principle of equality does not admit of exact definition in the decisions of a national court. Its application to a particular set of facts may be judicially determined, but broad definitions are of necessity obiter

dicta. There are a few cases in which the principle may be said to have been applied to a definite set of facts, although in no case was its application really necessary to the decision of the point at issue. There are a few well known dicta by famous judges, in which the principle is stated generally and much after the manner of the classical publicists.

In The Schooner Exchange v. M'Faddon and Otherstan American owned vessel was seized by the French, under the orders and decrees of Napoleon, was converted into a French man-of-war, and in that capacity entered the port of Philadelphia two years later, where it was libelled by its former owners. The libel was dismissed by the district court on the ground that a public armed vessel of a foreign sovereign, in amity with the United States, is not subject to the Judicial tribunals of the United States so far as the Sovereign's title to the vessel is concerned.

This decision

4 (1812) 7 Cranch 116.

was reversed in the circuit court, but affirmed on appeal by In the course of

the Supreme Court of the United States. his opinion Chief Justice Marshall said:

The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete Jurisdiction within their respective territories which sovereignty confers.

This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial Jurisdiction, which has been stated to be the attribute of every nation.5

It was the decision of the court that a public armed vessel. entering the port of a friendly state, under circumstances such as those in controversy, belonged to the class of cases mentioned in Chief Justice Marshall's remarks quoted above.

England

The next case in which the equality of nations was invoked involved the right of visitation and search on the high seas in the suppression of the slave trade. had almost stopped this traffic during the last years of the Napoleonic wars by exercising the belligerent's right of search. The trade revived, however, with the return of peace, and an effort was made to suppress it, by continuing the practice of visit and search in time of peace. A French

5 (1812) 7 Cranch 136, 137.