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trustee over whom the court has jurisdiction in cases where the cause of action did not arise from a transaction by the sovereign extra commercium and quorum non est commercium. The fact that garnishment process is the only process to reach funds belonging to a foreign sovereign is a good reason for sustaining it. In such a proceeding in rem the indignity of personal service of the summons or execution is avoided and the plea of extraterritoriality should not prevail. One of the objects of international law is to evoke the aid of ordinary courts, and not to work an injustice nor to prevent enforcement of a just claim, in cases where such use would not lessen the dignity or functions of a foreign state. Should a foreign government desire to possess property in a third country, there is no reason why it should not submit itself to the operation of the laws in that country. The prerogatives of the sovereign can not extend to do any injury because, being created for the benefit of the people, they should not be exercised to their prejudice. A sovereign entering into an ordinary contract, upon sufficient consideration, should be bound to the same extent and manner as is the opposite party to the contract and suit should be permitted in some form; the right being founded ex debito justitiæ. That this method of reasoning has been held equally applicable in municipal law to cases where a sovereign state by its agents act in an undertaking for profit has been shown by authorities cited supra. The element of consideration comes in, and the state or its agents act for their own advantage and emolument. It is in fact the law, as well as it is justice, to subject the doctrines of international law and of municipal law to the same processes of reasoning no matter from what theories or implications they severally proceed.

NATHAN WOLFMAN.

THE HISTORY OF THE DEPARTMENT OF STATE

V

OCCASIONAL DUTIES OF THE DEPARTMENT

Perhaps the most important of the occasional duties of the Department of State is that which involves its agency in recording the result of the quadrennial elections held in the several States for the office of President and Vice-President of the United States. Section 1 of Article II of the Constitution provided that the electors should meet in the several States, and, having voted for a President and Vice-President, should make a list of the persons voted for, which they must sign and certify to and transmit sealed to the seat of government directed to the President of the Senate. The twelfth amendment to the Constitution adopted in 1804 looked towards an improvement in the method of voting for a President and VicePresident, but did not disturb the original provision for notifying the result. There is not, therefore, any constitutional requirement for participation of the executive branch of the government in this function; but the Act of March, 1792,1 relative to the election of a President and Vice-President provided for certain contingent duties on the part of the Secretary of State of great importance. Section 2 prescribed that the electors should meet in their respective States on the first Wednesday in December after their election, and sign three certificates of the votes given by them and seal up the same, "and send one copy by messenger to the President of the Senate; forward another to him by mail and lodge the third with the judge of the district in which the electors assembled."

Section 4 said:

That if a list of votes from any State shall not have been received at the seat of government, on the said first Wednesday in January, that then the Secretary of State shall send a special messenger to the district judge in whose custody such list shall have been lodged, who shall forthwith transmit the same to the seat of government.

11 Stat., 239.

And section 6 said:

That, in case there shall be no President of the Senate at the seat of government on the arrival of the persons intrusted with the lists of the votes of the electors, then such persons shall deliver the lists of votes in their custody into the office of the Secretary of State, to be safely kept and delivered over as soon as may be, to the President of the Senate.

This portion of the Act was confirmed 'by the Act of March 26, 1804,2 and the only change made by the Act of January 23, 1845,3 was to change the date of meeting of the electors.

A careful search of the records of the Department of State fails. to show that the electoral vote has ever been delivered to the Secretary of State. If it ever should be, his duty would be simply to act as its custodian, until the opportunity should come when it could be safely delivered to the President of the Senate.

Section 4 of the Act cited above, which became section 141 of the Revised Statutes, was amended by the Act of October 19, 1888,3a to read:

Whenever a certificate of votes from any State has not been received at the seat of government on the fourth Monday of the month of January in which their meeting shall have been held, the Secretary of State shall send a special messenger to the district judge, etc.

Special messengers were occasionally sent under the original law and have been sent under that now in force, there being no difference in the method prescribed by both.

The following example of the sending of a messenger will serve as an example:

VICE-PRESIDENT'S CHAMBER

WASHINGTON, D. C., Jan. 29, 1889.

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Referring to the provisions of an Act supplementary to the Act approved Feb. 3, 1887, entitled "an Act to fix the day for the meeting of the Electors of President and Vice-President, and to provide for and

22 Stat., 295.

35 Stat., 721.

зa 25 Stat. 613.

regulate the counting of the votes for President and Vice-President, and the decision of questions arising thereon," approved Oct. 19, 1888, I have the honor to inform you that the Certificate and List of Votes for President and Vice-President of the United States have not been received from the State of Florida.

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Having been informed by the President pro tempore of the Senate of the United States, that the certificates and list of votes for President and Vice-President of the United States have not been received from the State of Florida, it is my duty under the Act of Congress, approved October 19, 1888, entitled "An Act Supplementary to the Act Approved February 3rd Eighteen Hundred and Eighty-Seven entitled 'An Act to fix the Day for the Meeting of the Electors of President and VicePresident and the decision of questions arising thereon"" to send a special messenger to that State to obtain from the Judge of the United States District Court in whose custody it is, by Act of Congress, required to be deposited, the certificate of the vote of that State: I therefore under Section 141 of the Revised Statutes, as amended by the above quoted Act appoint you special messenger for that purpose.

You are, therefore, instructed to proceed immediately, and by the quickest possible route, to such place as the District Judge may be found in whose custody the certificate of votes from the State of Florida has been lodged, and, there exhibiting to him this instruction, you will request that he forthwith transmit that certificate to the seat of Government, offering at the same time your services as a messenger to bring the certificate hither. You will return immediately and by the most speedy route to the seat of Government, reporting without loss of time to me at this Department and delivering the said certificate of votes to the President pro tempore of the Senate of the United States. You will constantly keep this Department advised by telegraph of your movements and where telegraphic despatches can reach you, in order that should any change of plan become necessary you may be informed thereof without delay.

In witness whereof I have hereunto set my hand and caused the seal of the Department of State to be affixed this 29th day of January A. D. 1889.

4 Dept. of State, Misel. Letters.

B Dept. of State, Domestic Letters.

T. F. BAYARD.5

The messenger, it should be remarked, reported to the Department of State, but he delivered the electoral vote to the President of the Senate.

The Act of February 3, 1887,6 to fix the day for the meeting of electors of President and Vice-President, gave the Department of State specific and important duties with reference, not to the votes for President and Vice-President, but to the election of electors to choose the President and Vice-President. Section 3 said:

* * *

That it shall be the duty of the Executive of each State, as soon as practicable after the conclusion of the appointment of electors in such State, by the final ascertainment under and in pursuance of the laws of such State providing for such ascertainment, to communicate, under the seal of the State, to the Secretary of State of the United States, a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and if there shall have been any final determination in a State of a controversy or contest as provided for in section two of this act, it shall be the duty of the Executive of such State, as soon as practicable after such determination, to communicate, under the seal of the State, to the Secretary of State of the United States, a certificate of such determination, in form and manner as the same shall have been made; and the Secretary of State of the United States, as soon as practicable after the receipt at the State Department of each of the certificates herein before directed to be transmitted to the Secretary of State, shall publish, in such public newspaper as he shall designate, such certificates in full; and at the first meeting of Congress thereafter he shall transmit to the two Houses of Congress copies in full of each and every such certificate so received theretofore at the State Department.

Following this requirement the Secretary of State brings the provisions of the Act to the attention of the several Governors of the States soon after the Presidential election by sending to each the following circular letter:

Sir:

DEPARTMENT OF STATE,

WASHINGTON, December

190-.

With immediate regard to the election of Presidential and VicePresidential electors just concluded, I have the honor to enclose herewith a copy of the Act of Congress approved February 3, 1887, relating to the

624 Stat., 373.

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