(concurring).
The facts on which the jurisdiction of the district court can rest are undoubted; it had a res within its control, and the statute gave it substantive jurisdiction over the controversy. When I say it had a res within its control, I mean that it could direct the obligor to pay the deposit to the plaintiff, and that its order would be recognized everywhere as a valid discharge. Again, it had substantive jurisdiction over the controversy, because it had unquestioned power to decide the case; for example, if the defendant had appeared. There was therefore no lack of jurisdiction, but there was a grave question whether the court should exercise it. When a court seizes property from the actual possession of a foreign state with which we are in amity and that state intervenes in due form to assert a claim to it, the court will desist even though our Department of State does nothing. The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592; Ex parte Muir, 254 U.S. 522, 41 S.Ct. 185, 65 L.Ed. 383; The Pesaro, 271 U.S. 562, 46 S.Ct. 611, 70 L.Ed. 1088; The Navemar, 303 U. S. 68, 58 S.Ct. 432, 82 L.Ed. 667; The Carlo Poma, 2 Cir., 259 F. 369. When, however, the foreign state is not in possession of the property seized, it cannot secure a dismissal merely by showing that it has an interest in preventing the seizure. The Navemar, supra, 303 U.S. 68, 58 S.Ct. 432, 82 L.Ed. 667; The Attualita, 4 Cir., 238 F. 909. I can think of no rationale which will reconcile these doctrines except that the violation of a foreign state’s possession is so grave an indignity as ipso facto to embarrass the relations between that state and the state of the. forum; it is better that the wrongs of the court’s nationals should be left to negotiation between the powers. Obviously that does not apply to all suits which in any degree affect the interests of a foreign state; those interests may be trivial, the foreign office of the state of the forum may .prefer incurring the slight friction which the prosecution of the suit may arouse to depriving its nationals of 'their normal redress and to settling the controversy by negotiation. The question is certainly not for the foreign state’s sole decision; it must rest with the foreign office of the state of the forum.
In the case at bar it was necessary to the success of the plan of putting the national Brazilian credit upon a firm basis that the credit of the federate states should-be included; our Department of State by vouching for the “statements of fact” in the ambassador’s protest has made this datum. Moreover, it needs no argument to prove that the plan cannot succeed if Brazilian credits are open to attachment by our nationals. That alone would not have been enough; the district court had to have the added assurance of our Department of State that the suit would, or might, prejudice the relations between Brazil and ourselves; and, although the language was very guarded, I think its import went so far. The mere fact that the Department saw fit to transmit the protest at all was evidence that it regarded the issue as substantial; it might well, as in the case of The Navemar, supra, 303 U.S. 68, 58 S.Ct. 432, 82 L.Ed. 667, have left the ambassador to intervene personally. The language chosen, especially in the letter of November 22, 1940, bears out this inference. Not only had the Department earlier vouched for the truth of the “statements of fact” in the protest, as I have said, but in that letter it declared that “a prima facie case had been made” for immunity, and that “the interest of the Government of Brazil * * * is of such a character as to entitle” the funds to “immunity.” I cannot read this otherwise than that the Department thought the issue important enough for the district court not to proceed.
I prefer this ground for affirmance to holding without more that each of the fed*361erated states of Brazil is immune from suit. Possibly that is true, for those states do indeed have large governmental powers; but so have many cities, and I should hesitate to hold that every political division was immune which exercised substantial governmental powers. It does not seem to me desirable, or indeed practicable, in every case to examine the municipal law of a foreign state in order to see how far the functions of one of its political divisions justify giving it immunity; nor indeed do I know any measure by which to judge that issue. Certainly, if the answer depends upon how far the suit will affect foreign relations, only our foreign office ought to decide it. If that office does not think that the foreign state’s protest deserves transmission to its own court, I would not go at all into the question of the “sovereignty” of the political division of the foreign state. I know of no decision to the contrary unless it be In re Patterson-MacDonald Shipbuilding Co., 9 Cir., 293 F. 192, where before the Statute of Westminster the Commonwealth of Australia was a party to a bankruptcy proceeding; and there the court really begged the question by treating Australia as an independent state. All the other decisions cited in the majority opinion do not, I believe, touch the point. On the other hand, there are several decisions in French and Belgian courts which have entertained suits against the politicial divisions of a federation.