Imágenes de páginas
PDF
EPUB

may at

any

6 Geo. 4, c. 33, which in effect dissolved the com- her Majesty had acquired such power or jurisdiction pany, and transferred their property to the Crown, by the cession or conquest of territory : and vested their lawful rights of jurisdiction over his And whereas her Majesty has had and now has Majesty's subjects resorting to the ports of the Levant power and jurisdiction in the dominions of the Sublime in the consular officers appointed by his Majesty. Ottoman Porte :

This jurisdiction was recognised and confirmed in And whereas her Majesty was pleased on the 2nd the Treaty of the Dardanelles, in 1809, and by 6 & 7 day of October, 1843, the 19th day of June, 1844, Will. 4, c. 78; but that Act was subsequently re- the 24th day of April, 1847, and the 27th day of pealed by 6 & 7 Vict. c. 94 (1843), intituled, “An Act August, 1857, by and with the advice of her Privy to remove doubts as to the exercise of power and juris- Council, to make, by several Orders in Council, dated diction by her Majesty within divers countries and the said days respectively, provision for the exercise places out of her Majesty's dominions, and to render of her power and jurisdiction aforesaid : the same more effectual." The first section recites And whereas it has seemed to her Majesty, by and that by treaty, capitulation, grant, usage, sufferance, with the advice of her Privy Council, to be expedient and other lawful means, her Majesty hath power and at the present time to revise and consolidate the projurisdiction within divers countries and places out of visions of the said Orders, and to make further proviher Majesty's dominions, and that doubts have arisen sion for the due exercise of her Majesty's power and how far the exercise of such power and jurisdiction is jurisdiction aforesaid, and for the more regular and controlled by, and dependent on the laws and customs efficient administration of justice and the better maiuof this realm, and enacts that her Majesty may exer- tenance of order ainong all classes of her Majesty's cise any power or jurisdiction which her Majesty now subjects, and of persons enjoying her Majesty's prohath, or may at any time hereafter have, within any tection, resident in or resorting to the dominions of the country or place out of her Majesty's dominions, in Sublime Ottoman Porte : the same and as ample manner as if her Majesty had Now, therefore, her Majesty, by virtue of the powers acquired such power or jurisdiction by the cession or in this behalf by the Foreign Jurisdiction Act or conquest of territory. The second section enacts, that otherwise in her vested, is pleased by and with the every act which

time be done in pursuance advice of her Privy Council to order, and it is hereby of any such power or jurisdiction of her Majesty, shall ordered as followsin all Courts, ecclesiastical and temporal, and else- 1st. The present Order shall come into operation on where, within her Majesty's dominions, be, in all the 1st day of March, 1861, and shall be read as it cases, and to all intents and purposes whatsoever, as made and dated on that day. valid and effectual, as though the same had been 2nd. The said four Orders shall be repealed. done according to the local law then in force, within The repeal shall not affect anything done under the such country or place. The third section authorises said Orders, or any of them. any Court, ecclesiastical or temporal, in her Majesty's Pending proceedings shall be regulated by the predominions, to procure, where necessary, evidence of sent Order, as far as the nature and circumstances of any such power or jurisdiction by application to one each case will admit. of her Majesty's principal secretaries of state.

4th. All her Majesty's jurisdiction exerciseable in In pursuance of the above statute, various Orders in the dominion of the Sublime Ottoman Porte for the Council have been issued by her Majesty. The most judicial hearing and determination of suits or matters important with reference to this suit is the Order in in difference between British subjects, Council, dated 27th of August, 1860, which was in British subjects and subjects of the Sublime Ottoinan operation at the time that the judgment of the Consular Porte, or between British subjects and subjects or Court was delivered.

citizens of any other State, or for the administration This Order, so far as it is material to the present case, or control of the property or persons of British subjects, is as follows:

or for the repression or punishment of crimes of Whereas by the Act of the Session of Parliament offences committed by British subjects, or for the of the sixth and seventh years of her Majesty's reign maintenance of order among British subjects

, or for (c. 94), intituled, “An Act to remove doubts as any purpose connected therewith respectively, shall to the exercise of power and jurisdiction by her be exercised under and according to the provisions of Majesty within divers countries and places out of her the present Order, and not otherwise. Majesty's dominions, and to render the same more 5th. Subject to the other provisions of the present effectual, hereinafter called the Foreign Jurisdic- Order, the civil and criminal jurisdiction aforesail tion Act,” it was enacted (amongst other things), that may and shall, as far as circumstances will admit, be it was and should be lawful for her Majesty to hold, exercised upon the principles of and in conformity exercise, and enjoy any power or jurisdiction which with the Common Law, the rules of Equity, the her Majesty then had or might at any time thereafter Statute Law, and other Law for the time being in have within any country or place out of her Majesty's force in and for England, and with all the powers dominions, in the same and as ample a manner as if vested in and pursuant to the course of procedure and

or between

practice observed by and before Courts of Justice and of the sublime Ottoman Porte, or of the consul of such Justices of the Peace in England, according to their other State (as the case may be), to his submitting, respective jurisdiction and authorities.

and does submit to the jurisdiction of the Supreme or 13. All her Majesty's jurisdiction, civil and criminal, other Consular Court, and, if required, gives security exerciseable in the dominions of the Sublime Ottoman to the satisfaction of the Court, by deposit or otherPorte, shall, for and within the district of the Consu- wise, to pay fees, damages, costs, and expenses, and late General of Constantinople, be settled exclusively abide by and perform any such decision as may be in the Supreme Consular Court, as its ordinary given by the Supreme or other Consular Court, original jurisdiction.

originally or on appeal (as the case may require). 14. All her Majesty's jurisdiction, civil and criminal, exerciseable in the dominions of the Sublime Ottoman Brett, Q.C., and Vernon Lushington, for the appelPorte, beyond the district of the Consulate-General of lants (the owners of the “Laconia ") contended, Constantinople, and not under the present Order 1st. That the Consular Court had no jurisdiction. vested exclusively in the Supreme Consular Court, The cause of action arose between Russian and British shall, to the extent and in the manner provided by the subjects beyond the local limits of the authority of the present Order, be vested in the several Provincial Consul. The Court can have no jurisdiction beyond Consular Courts, each for and within its own district. that conceded by treaty, especially when the whole

15. Where a suit or proceeding of a civil nature, transaction takes place within a foreign country. But instituted in a Provincial Consular Court, does not the treaties between Turkey and Great Britain, and relate to money, goods, or other property of the certainly the treaty of the Dardanelles, fell short of amount or value of 3001. sterling or upwards ; or does conceding such a right as that of deciding between two not relate to or involve, directly or indirectly, a ques- foreign parties. No doubt had any statute gone the tion respecting civil right, or other matter at issue, of length of enjoining the Consul to entertain the suit the amount or value of 3001. sterling or upwards, or he was bound to hear it, but no statute, and no order is not brought for the recovery of damages of the in Council can enlarge the jurisdiction which is simply amount of 3001. sterling or upwards, the Court shall that which the Sultan has ceded to her Majesty: Nor have jurisdiction to hear and determine the case again, presuming that both the Turkish and British withont assessors.

governments had fully conceded to the Consular Court In all cases other than those herein before described, the jurisdiction in question, could it have been the Court shall hear and determine the case with lawfully enforced against a Russian subject. Indeed,

the assent of the Russian Government would not have 16. The Supreme Consular Court shall have, in all had that effect, for consent does not give jurisdiction. matters civil and criminal, a concurrent jurisdiction A Russian in Constantinople is not within British with the several Provincial Consular Courts, such jurisdiction, and cannot be forced into the Consular jurisdiction to be exercised subject and according to Court. The Consul has no means of enforcing a the other provisions of the present Order.

judgment against a Russian subject. Then the rule 26. The Supreme and every other Consular Court of reciprocity applies, and if an English suitor canshall be a Court of Law and of Equity, and (subject to not enforce a judgment against a Russian subject, the other provisions of the present Order) shall have neither can a Russian enforce a judgment against an and may exercise all jurisdiction, power, and authority English subject. But, in fact, none of the govern-legal, equitable, or other—which any consul of her ments have sanctioned such jurisdiction. The Turkish Majesty, by custom has or may exercise in the do- government has never by treaty or custom assented to minions of the Sublime Ottoman Porte.

it. The treaty of the Dardanelles expressly mentions 64. The Supreme or other Consular Court, according “Englishmen or other subjects of " Great Britain, and to its respective jurisdiction, original or appellate (as gives no jurisdiction to the Consul between English the case may require), and in conformity with the rules subjects and the subjects of other foreign powers. relating to suits between British subjects and appeals Nor has the British government assented to such a therein, may hear and determine any suit, proceeding, jurisdiction, for it can have no authority to impose or question of a civil nature, instituted, taken, or & jurisdiction upon Russian subjects. The 6 & 7 raised by a British subject against a subject of the Will. 4, c. 78, was designed, as the preamble shows, Sublime Ottoman Porte, or a subject or citizen of any to protect Consuls in the exercise of their powers other State in amity with her Majesty, or by a subject against actions on their decisions. The second section of the Sublime Ottoman Porte, or a subject or citizen of does, in fact, speak of a jurisdiction occasionally any other State in amity with her Majesty, against a exercised between British subjects and subjects of British subject.

other powers, but it speaks there only permissively, Provided that the subject of the Sublime Ottoman and does not give jurisdiction with power to compel. Porte, or the subject or citizen of such other State as

Nor would it justify a Consul in giving judgment by aforesaid, obtains and files in such Court the consent, default. The 6 & 7 Vict. c. 94, only gives her Majesty in writing, of the competent local authority on behalf power to establish a jurisdiction over British subjects.

assessors.

The Orders in Council consequent on this Act must Orders in Council, 9 Jan. 1863 ;
confine themselves within these limits. If they go 3 Kent, Com. 293;
beyond them, they are invalid.

Hay v. Le Neve (loc. cit.). 2nd. If the Consular Court possessed at that time any

Brett, in reply. jurisdiction, yet it had never received any Admiralty or

It is a constitutional question whether the property Vice-admiralty jurisdiction, nor had it any authority to proceed in rem. By the Order in Council of the 9th sold against his consent by a British Court sitting in

of a British subject can be seized in his absence, and of January, 1863, the Consular Court is expressly

Turkey, to answer for a civil wrong alleged to have constituted a Vice-admiralty Court, but this order was not in force at the time the judgment appealed against tion which cannot be created by consent of a Sovereign

been committed by him in Turkey. This is a jurisdicwas given, and the Order is thus an indirect proof that at that period no such Vice-admiralty jurisdic-ment. There is no instance of this assumed Admiralty

or Orders in Council. It requires an Act of Parliation was recognised.

right in rem, and in the absence of any recognised 3rd. If the Consular Court possessed at that time juris. diction to entertain the suit in question at all

, yet it special law applying to the case, an English Judge is

bound to administer the Common Law of England. had no authority to administer the law of the English Courts of Admiralty, but was bound to administer

5 August, 1863. the municipal law of Great Britain, and was bound to

The opinion of the Committee was delivered by give judgment for the defendants.

Dr. LUSHINGTON, who said :-In considering what 4th. Upon the merits the “Laconia was right.

power and what jurisdiction was conceded to Great They referred to,

Britain within certain portions of the Turkish doniSloop Betsey, 3 Dallas, 6;

nions, it must always be borne in mind that in almost Schooner Tilton, 5 Mason, 465;

all transactions, whether political or mercantile, & Wheaton's Elements, p. 328 ;

wide differenca subsisted in the dealings between an Vattel's Law of Nations, Bk. 1, c. 23 ;

Oriental and a Christian State and the intercourse Schooner Exchange, 7 Cranch, 136, 144 ;

bctween two Christian nations. Smith v. Coudry, 1 Howard, 28 ;

That was an undoubted fact. Many of the reasons Hoy v. Le Neve, 2 Shaw, 395 ;

were obvious, but the present was not the occasion for De Vaux v. Salvador, 4 Ad. & El. 420.

discussing them. It was sufficient to know and acknow

ledge that such was the fact. C. P. Butt and Pritchard, for the respondents, the It was true beyond all doubt that as a matter of owners of the “ Colchide," contended,

right no State could claim jurisdiction of any kind 1st. That the jurisdiction was established by the within the territorial limits of another independent consent of the Governments. The Russian Chancel. State. lerie expressly sanctioned the suit. In all the treaties It was also true that between two Christian States made between Turkey and Great Britain, the consular all claims for jurisdiction of any kind, or exemption jurisdiction is conceded. The Sultan has not by treaty from jurisdiction, must be founded on treaty of given any rights to British consuls over foreign sub- engagements of similar validity. Such, indeed, were jects, but where he has permitted such rights occasion factory establishments for the benefit of trade. ally to be exercised in his territories, he has by custom

of

But though according to the laws and usages so far parted with his sovereign rights. Similarly, the European nations a cession of jurisdiction to the subCzar, though not by treaty, conceded a jurisdiction to jects of one State within the territory of another, British authorities, and, by acquiescence and custom, his would require, generally at least, the sanction of a subjects are authorised to resort to this tribunal. The treaty, it might by no means follow that the same jurisdiction exists by custom, and the owners of the strict forms, the same precision of treaty obligation

, “Colchide" voluntarily submit and appeal to it. would be required or found in intercourse with the

2nd. There is an undoubted remedy in rem in cases Ottoman Porte. of bottomry given by the Consular Court, and if so it It was true, as already alluded to, that if an inquiry is competent to proceed in rem in cases of collision. was made as to the existence of any particular priviThe Order in Council of 1860 gives to the consul the leges conceded to one State in the dominions of anwhole of the jurisdiction possessed by her Majesty. other, and amongst European nations, the subsisting

3rd. As to the mode of the remedy given by the treaties would be regarded, but that mode of incurring Consular Court-the division of damages—this more obligations or of investigating what had been con; nearly corresponds to foreign law than the doctrines of ceded was matter of custom, and not of natural our law. They referred to,

justice. Wheaton's Elements, 224 ;

Any mode of proof by whịch it was shown that I Orders in Council, 2 Oct. 1843 ;

privilege was conceded was, according to the principles Orders in Council, 27 Aug. 1857 ;

of natural justice, sufficient for the purpose. The forOrders in Council, 27 Aug. 1860 ;

mality of a treaty was the best proof of the consent

and acquiescence of parties, but it was not the only treaty, capitulation, grant, usage, sufferance, and proof, nor did it exclude other proof ; and more espe. other lawful means, her Majesty hath power and juriscially in transactions with Oriental States.

diction within divers countries and places out of her Consent might be expressed in various ways: by Majesty's dominions; and that doubts have arisen constant usage permitted and acquiesced in by the how far the exercise of such power and jurisdiction authorities of the State, active assent, or silent acqui. is controlled by and dependent upon the laws of this escence where there must have been full knowledge. realm ;” and enacted that “Her Majesty may exercise

Their Lordships, having considered the materials any power or jurisdiction which her Majesty now hath, before them, entertained no doubt that, so far as or may at any time hereafter have, within any country related to the Ottoman Government, no objection was out of her Majesty's dominions, in the same and as tenable against the exercise of jurisdiction between ample a manner as if her Majesty had acquired such British and Russian subjects. Indeed the objection, power or jurisdiction by the cession or conquest of if any such could properly be urged, shonld come from territory.” The effect of that section was that the the Ottoman Government rather than a British suitor, jurisdiction of the British Consul in the Ottoman who, in the present case, was bound by the law esta Empire became, within the limits within which it blished by his own country.

existed by usage or sufferance, liable to be regulated The case might, in some degree, be assimilated to by Order in Council. Now the Order in Council dated the violation of neutral territory by a belligerent; the the 27th of August, 1860, recited among other matters neutral State alone could complain.

that, “Her Majesty has had and now has power and Their Lordships thought, looking at the whole of the jurisdiction in the Ottoman dominions, and that it is case, that so far as the Ottoman Government was con expedient to revise and consolidate tlie provisions of cerned, it was sufficiently shown that they had acquiesced the former Orders, and to make further provision for in allowing to the British Government a jurisdiction, the due exercise of her Majesty's power and jurisdicwhatsoever might be its peculiar kind, between British tion aforesaid, and for the more regular and efficient subjects and the subjects of other Christian States. administration of justice and the better maintenance

It appeared to their Lordships that the course of order among all classes of her Majesty's subjects was : viz., that at first, from the total difference of and of persons enjoying her Majesty's protection religions habits and feelings, it was necessary to with resident in or resorting to the dominions of the draw as far as practicable British subjects from the Sublime Ottoman Porte." natire Courts; then, in the progress of time commerce The plaintiff in the present case had complied with increasing, and various nations having the same inte the provisions contained in the 64th section of the Test in abstaining from resort to the tribunals of order (vide suprà), and had thereby submitted himself Mussulmans, &c., recourse was had to Consular Courts, in the suit to the jurisdiction of the Court. The and by degrees the system became general.

Court had no jurisdiction over him except by his conOf all that the Government of the Ottoman Porte sent. It could not have entertained the cross action must have been cognisant, and their long acquiescence unless by his submission to its authority, and it comproved consent.

pelled him to give that consent by refusing to proceed The principles were fully explained in the celebrated in the action which he had instituted against the Judgment of Lord Stowell in the case of The Indian original defendants unless he consented to do justice Chief (3 C. Rob. 12).

by appearing to the cross action which they desired Though the Ottoman Porte could give and had given to institute against him. He had thought fit to comply to the Christiaa Powers of Europe authority to admi- with those terms, and he did not now complain of mister justice to their own subjects according to their them, and it would be singular if the party who himown laws, it neither had professed to give nor could self was by law subject to the present tribunal could give to one such Power any jurisdiction over the sub- raise an objection that the Court had no right to exjects of another Power. But it had left those Powers ercise the jurisdiction which at his. instance it had at liberty to deal with each other as they might think enforced against his adversary. fit, and if the subjects of one country desired to resort The general right of the Court to entertain the suit to the tribunals of another, there could be no objection under those circumstances was perfectly clear, and to to their doing so with the consent of their own Sove throw any doubt upon it would be to subvert all the reign and that of the Sovereign to whose tribunals principles upon which justice was administered they resorted.

amongst the subjects of Christian powers, in Turkey There were no compulsory powers in an English Court and the other countries of the East. in Turkey. over any but English subjects ; but a Rus Hitherto their Lordships had spoken of jurisdiction sian or any other foreigner might, if he pleased, in its general sense, and had stated their conclusion voluntarily resort to it with the consent of his Sove that for a case of collision in the Sea of Marmora some reign, and thereby submit himself to its jurisdiction. legal proceeding would belong to the Consular Court.

That case was provided for by the 6 & 7 Vict. c. 94. Now they must inquire further, whether it was comThe first section of that Act recites that, " by petent to the Court to proceed as if it were invested

}

with the authority of a Vice-Admiralty Court. They It 'now became their Lordships' duty to state the thought that question must be solved by reference to the determination at which they had arrrived upon the usage which had prevailed; the usage respecting the merits of the case. After the most careful and anxious arrest of vessels, the proceeding in rem.

consideration of every part of the evidence and of So far as their Lordships could ascertain from the every point in the argument, their Lordships concurred information furnished to them, there appeared to have in the intimation given by the learned Judge of the been one case of collision-possibly more, but there court below, that “under the circumstances it would was proof of one only.

seem a simple, and perhaps it would be the right The Consular Judge, however, stated that proceed course, to say neither party has proved his case.” ing in rem had been customary, and especially in That was the decision which their Lordships had causes of bottomry. Now causes of bottomry, where adopted. the ship was arrested, were clearly proceedings in rem,

Minute.-Judgment of the Supreme Consular Court usually of Admiralty jurisdiction. Their Lordships reversed (upon the evidence). Both actions dismissed. thought that, by the very extensive and comprehensive

Each party to pay their own costs throughout. Moneys terms used, such a jurisdiction, whether to be called

deposited to be given up and the securities vacated. by that name, had been conferred upon the Consular Court; and if in bottomry, there was no reason why it should not exist in causes of collision : the same considerations of convenience, the same necessity for Lord Chancellor. obtaining justice, subsisted in both cases.

6, 9, 18 Nov., 10 DEC. COVENTRY V. BARCLAY. It was not necessary to declare that the Court

1863. possessed full Admiralty jurisdiction ; it was sufficient Partnership Articles - Authentic Interpretation to express their concurrence with the Consular Judge that with respect to proceedings in rem, the causes of

Waiver-AcquiescenceSuspense Account. action occurring within given limits, and the usage of A course of dealing by all the partics to the partnership so treating cognate causes, such as bottomry cases, articles

, not at first sight in accordance with them, either justified him in the course he had pursued on the affords an authentic interpretation of their meaning, or present occasion, and therefore their Lordships must is evidence of a new term added or substituted in the uphold the jurisdiction.

original agreement. There was, however, another question which re- Partnership articles directed that the several partners quired their serious attention. There was a cross should once in every year make, cast up, and fully action in addition to the original action. The Judge finish between them a true, perfect, and particular rise found both parties to blame, and he ordered that the or reckoning in writing of their joint stock, and of the damage sustained by each should be added together, value thereof, and of their gains and losses

, and that and each party pay one-half. The effect on the such rest should be signed by all the partners, and when present occasion would be a loss to the “ Laconia" of finished and signcd should be conclusive, czcept as to about 20,0001. : 'but it was not to the effect their clerical errors excceding 10001. In taking these rests, Lordships must look; they must direct their attention it had been the practice of the partners for many years to other considerations.

not to make a regular valuation of the fixed capital, but, Had the rule prevailing at Common Law been starting from the values given in the next preceding rest

, to adopted, each party would have had to bear his own estimate how far these should be increased or diminished, loss.

regard being had to the outlays and deteriorations only. Opinions might differ, and indeed did differ, as to In July, 1860, a rest was taken in the accustomed mode, what course was most consonant to justice. That ques. 1 B, one of the partners, being absent. An abstrach tion their Lordships were not called upon to decide ; was sent to H B, who expressed no disapproval of the but what they had to decide was, when the proceeding course pursued, and died about two months afterwards was in rem, what ought to be the rule? What was without having signed the rest. The surviving partners the intention of the authority which sanctioned and being, under the articles, entitled to purchase H B's made legal the exercise of the jurisdiction in rem? share, according to its value as determined by the rest Could it be intended to constitute a jurisdiction in rem next preceding his death :with a Common Law remedy? They thought that no Held (affirming the decision of the MASTER OF THE such anomaly could be intended, and therefore con- Rolls), that H B was bound to sign, and must in curred in the view of the Consular Court.

equity be considered as having signed, the account of Their Lordships regarded the recent Order in July, 1860. Council, by which a certain Admiralty jurisdiction It was also the practice of the firm, at every rest-taking, was expressly given, not as creating such jurisdiction, to set apart out of the profits a large sum as a provision but only as expressing more distinctly and with greater for the unknown and certain known liabilities of the detail the authority which had been already conferred ensuing year :by former Orders.

Held (reversing the decision of the MASTER OF THE

« AnteriorContinuar »