and the decrees themselves, when approved, are to be promulgated, not in the name of the sultan, but in the name of the French Government. Without further argument, it seems clear that the judgment of France is henceforth substituted for the judgment of the sultan, and the control of Morocco passes from its native authorities to the duly accredited representative of France. In view of the express provisions of this article, it would appear to be correct to say that the Moroccan Government is the agent of France, rather than that the latter Power is the agent of Morocco in carrying on the government.

So far the question has been considered from the international standpoint. Article VI deals with the international status and representation of Morocco and provides that the French diplomatic and consular agents shall represent as well as protect Moroccan subjects and interests in foreign parts. In this first clause of the article the rights of France are stated in the affirmative, for Morocco specifically invests French diplomatic and consular agents with the power of representation. It would seem to follow from this that Morocco renounces the right of individual representation, but the negotiators were apparently unwilling to leave a loophole for interpretation. Therefore, the final paragraph of the article states the case specifically by providing that the sultan shall not perform any act of an international character "without the previous assent of the Government of the French Republic." That is to say, France is affirmatively invested with the power to represent Morocco in its foreign relations and Morocco expressly binds itself not to perform an international act without the consent of France. It may be maintained. that France is merely the agent of the Moroccan Government in international affairs, but, if this view be correct, France is nevertheless the sole agent, and the express renunciation would seem to be a surrender of power rather than an authorization to act as agent in its exercise.

It may be said that the treaty does not question the independent existence of Morocco, in the sense that it is not annexed as a province or department. Its territorial existence is to be maintained; the sultan is to be protected as the ruler of Morocco and his rights as such are recognized; but from the international standpoint, Morocco has lost both its independence and equality, and is no longer, it would appear, entitled to full membership in the society of nations. In international law, France is the sovereign of Morocco, although in constitutional law Morocco continues to exist, but even within this sphere France is explicitly created the agent of the Moroccan Government for certain.

clearly specified purposes, and the will of the agent rather than the will of the sultan is to prevail.

THE BRAZILIAN COFFEE CASE

In a very important case, involving 950,000 bags of coffee, claimed to be the property of the State of San Paulo of the Republic of Brazil, the United States prayed, in its petition under the Sherman Anti-Trust Act, for an injunction, refused by the District Court for the Southern District of New York, for "an immediate seizure of all coffee now in the possession of the warehouse company belonging to the State of San Paulo, Brazil," in order to turn it over "to a receiver to be appointed by the court, with instructions to sell it from time to time as the court might direct." This particular form of relief was disclaimed on the argument. The temporary relief which the bill asks for, to quote the language of the court, "is an injunction (continued till final hearing on decree) which will finally impound this coffee so that the owner can not sell it to anybody in this country at any price, can not ship it abroad and sell it there, should a satisfactory price be obtainable, and can not even return it to the place whence it came."

In denying the temporary relief, Circuit Justice Lacomb, speaking for the court, said:

No provision is proffered for making good to the owner any loss it might sustain in consequence of such impounding of the property, should the plaintiff fail to make good its contentions on final hearing, probably many months hence.

The numerous issues of fact and law, which have been referred to on the hearing, present important questions and contain too many elements of uncertainty to be decided summarily in advance of the trial. They may with greater propriety be disposed of when the testimony shall disclose the exact facts.

We are not persuaded by anything in the papers submitted that there is any reason to apprehend that in the interim there will be such changes in the situation as will injuriously affect the position of the government.

For these reasons the preliminary injunction prayed for by the government was denied.

The petition of the government sets forth that 950,000 bags of coffee were "purchased by the agents of the State of San Paulo," most of which is held "elsewhere than in the United States." It sets up the fact that the defendant, one Herman Sielcken, is a resident of the Southern District of New York; that he is the agent of the committee formed to

purchase and to control the coffee of the State of San Paulo; and that he has in his possession and control in the warehouse of the New York Dock Company on Long Island the coffee shipped to the United States under the directions of the foreign committee, of which he is a member. It is charged by the government that the action of the committee in purchasing large quantities of coffee outside of the United States and selling in New York the portion of the coffee allotted to the United States constitutes a conspiracy under the Anti-Trust Law of 1890, and prays for an injunction, as briefly stated in the decision of the court already quoted.

In this statement of the case there are two points of very considerable interest to international lawyers. First, whether the provisions of the Anti-Trust Act of July 2, 1890, apply to transactions which have taken place outside of the jurisdiction of the United States; and second, whether property in the United States admitted to belong to a foreign government, or its agents, can properly be made the object of legal proceedings. It is admitted in the petition that the purchase of the coffee and its storing by the committee, in order to regulate its price, is not illegal by the laws of Brazil (Petition of the United States, p. 31). It is maintained, however, that the execution in the United States of the agreement constitutes a conspiracy under the Act of July 2, 1890. The applicability of the Anti-Trust Act, so as to make the transactions, which admittedly took place in Brazil, a conspiracy under the provisions of the Sherman Act, has been passed upon by the Supreme Court of the United States in the American Banana Company v. United Fruit Company (213 U. S. 348), the head-note to which reads:

While a country may treat some relations between its own citizens as governed by its own law in regions subject to no sovereign, like the high seas, or to no law recognized as adequate, the general rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where it is done; that a statute will, as a general rule, be construed as intended to be confined in its operation and effect to the territorial limits within the jurisdiction of the lawmaker, and words of universal scope will be construed as meaning only those subject to the legislation; that the prohibition of the Sherman Anti-Trust law does not extend to acts done in foreign countries, even though done by citizens of the United States and injuriously affecting other citizens of the United States; that sovereignty means that the decree of the sovereign makes law and foreign courts cannot condemn the influences persuading the sovereign to make the decree; and that a conspiracy in this country to do acts in another jurisdiction does not draw to itself those acts and make them unlawful if they are permitted by the local law.

The decision in this case is so important as to justify quotation from the opinion of the court. Thus it is said:

The general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done. And the court states this and other considerations as leading in case of doubt "to a construction of any statute as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power." All legislation is prima facie territorial. Words having universal scope, such as 'Every contract in restraint of trade,' 'Every person who shall monopolize,' etc., will be taken as a matter of course to mean only every one subject to such legislation, not all that the legislator subsequently may be able to catch. In the case of the present statute the improbability of the United States attempting to make acts done in Panama or Costa Rica criminal is obvious, yet the law begins by making criminal the acts for which it gives a right to sue. We think it entirely plain that what the defendant did in Panama or Costa Rica is not within the scope of the statute so far as the present suit is concerned.

For again, not only were the acts of the defendant in Panama or Costa Rica not within the Sherman Act, but they were not torts by the law of the place, and therefore were not torts at all, however contrary to the ethical and economic postulates of that statute. The substance of the complaint is that, the plantation being within the de facto jurisdiction of Costa Rica, that state took and keeps possession of it by virtue of its sovereign power. But a seizure by a state is not a thing that can be complained of elsewhere in the courts. The fact, if it be one, that de jure the estate is in Panama does not matter in the least; sovereignty is pure fact. The fundamental reason why persuading a sovereign power to do this or that cannot be a tort is not that the sovereign cannot be joined as a defendant or because it must be assumed to be acting lawfully. The fundamental reason is that it is a contradiction in terms to say that within its jurisdiction it is unlawful to persuade a sovereign power to bring about a result that it declares by its conduct to be desirable and proper. It does not, and foreign courts cannot, admit that the influences were improper or the results bad. It makes the persuasion lawful by its own act. The very meaning of sovereignty is that the decree of the sovereign makes law.

It seems to be evident, therefore, that, whether or not the actions of San Paulo would constitute a conspiracy under the Sherman Act, if the same acts had been consummated in the United States, the Sherman Act can not be extended beyond the jurisdiction of the United States so as to make unlawful according to its provisions what was lawful according to the laws of Brazil. Whether or not the 950,000 bags of coffee, or any part thereof within the United States, can be seized or sold, would seem to depend upon the question whether or not property in the United States belonging to a foreign state is subject to judicial process. within the United States. It is a familiar doctrine of international law

that a foreign state or sovereign can not be sued without its or his consent, and that property belonging to the sovereign is likewise exempt from suit, even although such property may be engaged in trade. (De Haber v. Queen of Portugal, 1851, 17 Queen's Bench, 196; Vavasseur v. Krupp, 1878, L. R. 9, Chancery Div. 351; Le Parlement Belge, 1878, L. R. 5, Probate Div. 197.)

In the case of the Parlement Belge, it was insisted that the immunity from suit was lost by having been used for trading purposes, upon which the court said:

As to this, it must be maintained either that the ship has been so used as to have been employed substantially as a mere trading ship and not substantially for national purposes, or that a use of her in part for trading purposes takes away the immunity, although she is in possession of the sovereign authority by the hands of commissioned officers, and is substantially in use for national purposes. Both these propositions raise the question of how the ship must be considered to have been employed.

As to the first, the ship has been by the sovereign of Belgium, by the usual means, declared to be in his possession as sovereign, and to be a public vessel of the state. It seems very difficult to say that any court can inquire by contentious testimony whether that declaration is or is not correct. To submit to such an inquiry before the court is to submit to its jurisdiction. It has been held that if the ship be declared by the sovereign authority by the usual means to be a ship of war, that declaration cannot be inquired into. That was expressly decided under very trying circumstances in the case of the Exchange. Whether the ship is a public ship used for national purposes seems to come within the same rule. But if such an inquiry could properly be instituted it seems clear that in the present case the ship has been mainly used for the purpose of carrying the mails, and only subserviently to that main object for the purposes of trade. The carrying of passengers and merchandise has been subordinated to the duty of carrying the mails. The ship is not, in fact, brought within the first proposition. As to the second, it has been frequently stated that an independent sovereign cannot be personally sued, although he has carried on a private trading adventure. It has been held that an ambassador cannot be personally sued, although he has traded; and in both cases because such a suit would be inconsistent with the independence and equality of the state which he represents. If the remedy sought by an action in rem against public property is, as we think it is, an indirect mode of exercising the authority of the court against the owner of the property, then the attempt to exercise such an authority is an attempt inconsistent with the independence and equality of the state which is represented by such owner. The property cannot, upon the hypothesis, be denied to be public property; the case is within the terms of the rule; it is within the spirit of the rule; therefore, we are of opinion that the mere fact of the ship being used subordinately and partially for trading purposes does not take away the general immunity. For all these reasons, we are unable to agree with the learned judge, and have come to the conclusion that the judgment must be reversed.