Page:Harvard Law Review Volume 32.djvu/304

268 268 HARVARD LAW REVIEW The property of a republic must be presumed to be intended for the public purposes of government, and courts cannot pass judgment upon the comparative importance of the sovereign powers of the United States. A few years later the United States Supreme Court held in The Davis ^ that cotton of the United States being shipped on a private vessel could be libeled for salvage services rendered in saving it. The court indicated that the reason for the exemption of prop- erty of the local sovereign was to "prevent any unseemly conflict between the court and the other departments of the government." Only property in the actual possession of some officer charged on behalf of the government with its control was held to be free from court process. The court cited as its only authority Briggs v. Light-Boats.^ In that case at the time of the attachment all the vessels were still at the builder's wharf and one of them had not received any crew on board. It would therefore appear that this vessel was not in the government's possession within the meaning of The Davis. ^ Moreover, the Supreme Court, speaking through Justice Field in The Siren,^'^ had previously in a strong dictum in- dorsed a different doctrine. The court then said: "It is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public policy; the inconvenience and danger which would follow from any different rule. . . . "The same exemption from judicial process extends to the property of the United States, and for the same reasons." The decision in The Davis ^^ might have been reached on other grounds if the court had distinguished between property engaged, and property not engaged, in the public service.^ Every con- of an action in rem against government property was stronger than that opposed to it. His dictum that such actions could be brought is out of hne with the authorities. 7 lo Wall. (U. S.) IS (1869). 8 Supra. ^ Supra. " 7 Wall. (U. S.) 152 (1868). ^1 Supra. 12 The explanation which Waite, C. J., in The Fidelity, 16 Blatch. (U. S.) 569 (1879), gave of the decision in The- Davis was that the property libeled was not devoted to a public use. The cotton had been collected under the Abandoned and Captured Property Act and was being shipped to New York for sale so that the proceeds might go into the Treasury.