« ElőzőTovább »
be proceeded against with open violence, in the same way as if he had remained at home and war had been declared against him. Lord Abinger laid down that, as a general proposition, sovereign prince cannot be made amenable to any court of judicature in this country.2 Neither Grotius nor Puffendorf appear to have treated of this question; but Bynkershoek3 says, "Scio et in Geldriâ et alibi principes externos interposito arresto in jus vocari, ut adeo ea res in mores transivit ut tanquam de re liquidâ nunc equidem inter omnes videatur constare," having previously expressed an opinion that a foreign prince in another territory, doing any thing amenable to the criminal laws, ought to be warned to depart, like an ambassador, adding, “In causâ æris alieni idem dixerim; nam arresto detinere principem ut æs alienum expungat, quamvis fortè stricti juris ratio permitteret, non permittat tamen analogia ejus juris quod de legatis ubique gentium receptum est" (which we have seen does not apply); but he goes on to deny that the question can be decided by the law of nations, inasmuch as examples (he says) are wanting.*
Here are considerable varieties of opinion certainly; but whichever way the authorities may be thought to preponderate on the question, there can be no objection to examining it in another point of view. Lord Redesdale considered that to refuse a foreign sovereign the right of suing in our courts might be a just cause of war. But then the obligation of being sued does in effect follow of course. For certainly in case of an action in the common law courts a set-off must needs hold good against a royal as well as any other plaintiff by the statute; and in case of a suit in equity it has been decided by the House of Lords, that such a plaintiff stands on the same footing with ordinary suitors as to the rules and orders of the Court of Chancery, and is bound like them to answer a cross bill personally and upon oath. In the case of the King of Spain v. Mendizabal, Lord Eldon, C., made an order restraining the defendant from bringing an action at law, which order would have been idle if the defendant had no common law power of bringing such an action. Sir John Leach also distinctly laid down that a foreign sovereign or
Law of Nations, vol. ii. p. 590, and Supp. 598, 599; so Zouch, Solut. Quæst. de Jud. Legat 84.
2 Glyn v. Soares, 1 Y. & Col. (Exch.) 698.
3 De Foro Legator. c. 4.
De Foro Leg. cap. 3.
He mentions the case of a Duke of Mecklenburg
arrested in Holland in 1693 for debt.
$ Hullett v. King of Spain, 2 Bli. N. S. 60.
S. C. 1 Cla. & F. 333; and see Duke of Brunswick v. King of Hanover, 6 Beav. 1.
? Per Sugden, arguendo, 1 Sim. R. 101.
government could both sue and be sued in the courts of this country. Even the judges who incline to draw the line more strictly, fully admit that where a foreign sovereign files a bill or prosecutes an action in this country, he may be made defendant to a cross bill or a bill of discovery in the nature of a defence to the proceeding which the foreign sovereign has himself adopted, which surely admits the principle of responsibility to our courts; for it seems almost frivolous to say, that if A. sues B. the latter shall take advantage of that as an admission of A.'s liability to the jurisdiction, but that such admission shall not be good for the purpose of C.'s action; the admission, it would seem, if once made, is good for ever. At any rate by no judge or authority is it held as the Court of Queen's Bench held in the case we have referred to, that to sue a foreign sovereign was an insult. But is the summons to the debtor, which in the Lord Mayor's Court is a necessary preliminary form to obtaining a foreign attachment against the goods of the debtor in the hands of the garnishee and to which the above language was applied, anything but a mere form? Lord Mansfield thought not when he said, the rest of the court agreeing, that the very essence of the custom is that the defendant shall not have notice.3 In fact, attachment is not equivalent to arrest, for if it were it could not have been available against the goods of a corporation, which the legislature thought it was when they expressly exempted by stat. 9 & 10 Will. III. c. 44, s. 74, the stock of corporations created under that act from being "subject or liable to any foreign attachment by the custom of the city of London or otherwise.*" Attachment is a proceeding not in personam but in rem, and has been therefore likened to a confiscation in the Exchequer. 5 Therefore it seems difficult to perceive how such a proceeding can be an insult to a foreign sovereign. Nor does it appear at all clearly to be any breach of the law of nations. Neither Grotius nor Puffendorf, the great masters of that lore, treat the question whether a foreign sovereign can be sued in the courts of another country, much less do they expound the law as to the liability of such sovereign's goods, locally situate in another country, to the payment of his debts. In fact, we believe it will be found that Van Bynkershoek is the only legist who has laid
1 De la Terre v. Bernales, 1 Hovend. Supplem. to Ves. jun. 149.
2 6 Beav. 38.
3 Tamm v. Williams, 3 Dougl. 281.
4 See case of Hamburg Company, 1 Mod. 212; S. C. Freem. 207.
Day v. Paupierre, 18 Law J. (N. S.) Q. B. 270; Bromley v. Peck, 5 Taunt. 852; Wood v. Thompson, id. 851.
down anything on the subject; he says, "Quod ad bona externorum principum non una tamen omnium sententia est," but he states his full assent to the doctrine, that the property of a foreign sovereign is subject to the jurisdiction of the country in which it is; and he mentions instances as follows. The Elector of Brandenburg in 1628 had his goods arrested by a creditor by order of the States-General. Money belonging to the republic of Venice was attached in 1670 by a merchant of Amsterdam. Goods of the Duke of Mecklenburg were arrested in Holland in 1689 by a creditor. Goods of the King of Prussia were attached in 1716 by order of a Dutch court of justice. And Vattel says generally, the "conventions and contracts which the sovereign, in his sovereign character and in the name of the state, forms with private individuals of a foreign nation, fall under the rules we have laid down with respect to public treaties." One of these rules is,3—It is a settled point in natural law that he who has made a promise to any one has conferred on him a real right to require the thing promised, &c. These passages however relate more directly to the second of the cases, Wadsworth v. Queen of Spain, which we mentioned as having been decided by the Court of Queen's Bench, but which differed very slightly from the former. However that court now holds that a foreign sovereign cannot be compelled to discharge a public debt due to a subject of Great Britain by any process in our courts; and that to institute such a proceeding against the goods of a foreign sovereign in the Lord Mayor's Court of the City of London is an insult; and finally settles a much vexed question by declaring that the process of foreign attachment is never applicable where the original cause of action between the plaintiff and defendant arose without the jurisdiction of the city. The last point is of great importance to merchants in the city, inasmuch as it very much narrows the applicability of the process, which, according to several strong authorities, was not so limited, although there certainly was authority, and that very high authority, the other way.
De Foro Legat. c. 4.
2 Bk. ii. cap. 14, s. 214. And see Bodin de Republ. lib. i. cap. 8, p. 135, to the same effect.
Bk. ii. cap. 12, s. 163.
ART. III. THE SCOTCH BAR AND THE HOUSE OF PEERS.
ROM the following document our readers will learn that the Scotch bar have taken up the constitution of the House of Peers, as a court of appeal from Scotland, in right earnest. And we understand that at the meeting of the next parliament great exertions are to be made with a view of having effect given, in some way, to the recommendations of the Report, which, we believe, proceeds from one of the ablest and most distinguished lawyers of whom the bar in Scotland can boast. The proposal made must be a delicate and difficult one for the legislature to entertain, just, fair and reasonable though it must on all hands be admitted to be. But we have the pleasure to state that nothing has transpired, in the communications with government, to whom the Report has been submitted, calculated to discourage our friends in Edinburgh. The anomalous character of the existing system has been admitted, and we may even go the length of saying that the argument, derived from its having hitherto "worked well," has been allowed to afford no sufficient justification of the essential error and radical injustice of its principle. The Scotch bar are therefore sanguine that the Lords will, ere long, present such supreme judicial qualities, as will attract their confidence and command their respect. In reading this Report the English lawyer should know, that the Scotch bar, when met together in their corporate capacity, are a Faculty--they are termed "the Faculty of Advocates," and their chairman is called "the Dean of Faculty." Engaged in court, in the exercise of their professional functions, they," in the words of Lord Brougham, "form the bar of that ancient kingdom." They are the bar, and thus they speak on the appellate jurisdiction.
"Extract from Minutes of Faculty of 10th July, 1851.
"The Dean present.
"The Dean stated that he had called the meeting for the purpose directing the attention of the Faculty to the Bill, "to improve the Administration of Justice in the Court of Chancery, and in the Judicial Committee of the Privy Council," which had recently been introduced into the House of Commons.
"Mr. Inglis moved that a committee be appointed to consider the Bill, with instructions to report to another meeting of Faculty, to be held during the present session, which was seconded by the SolicitorGeneral, and unanimously agreed to.
"The following gentlemen were appointed members of committee, viz., the Dean of Faculty, the Solicitor-General, Messrs. Marshall,
Neaves, Inglis, T. Mackenzie, Penney, and Macfarlane. Mr. Inglis, Convener.
"Report of the Committee of Faculty, appointed on the 10th July, 1851, to consider the Bill to improve the Administration of Justice in the Court of Chancery, and in the Judicial Committee of the Privy Council.'"
"The committee have bestowed as much time and attention on this subject as was consistent with the expressed desire of the Faculty for an early report.
It is gratifying to be able to state, that the views which are now to be submitted as the result of the committee's deliberation, were adopted unanimously, and without any hesitation.
"The committee think it unnecessary to say a word on the feeling now almost universally prevalent among the profession and the public, that the time has come when it is indispensable to the due administration of justice, that some provision of a permanent character shall be made for the future, to secure that the House of Lords, when sitting to hear Scotch appeals, shall receive adequate and sufficient information as to the law and practice of Scotland.
"The consideration of this subject has been forced upon the Faculty at the present time by a variety of circumstances-in particular, by the 15th section of the Court of Chancery and Judicial Committee Bill, now pending in parliament, and read a first time in the House of Lords, on Monday the 14th July, which provides for summoning the judges of the equity courts of England to assist the House of Lords, when sitting as a court of appeal in chancery cases.
"It is a novelty in practice to take the assistance of the equity judges on appeals, and it has been suggested, in a recent debate in the House of Lords, that a similar provision should be made for summoning the Scotch judges in Scotch appeals.
"Various other plans have recently been proposed for altering and amending either the constitution or the practice of the court of appellate jurisdiction, and there seems little reason to doubt that the whole subject will very speedily be discussed in one or both Houses of Parliament.
"It appears to the committee to be the duty of the Faculty, both to the profession and the public, to take a distinct position, and to suggest some means of obtaining what the committee have already stated to be, in their opinion, indispensable to the due administration of justice in the court of last resort.
"It is altogether impossible to deny, that there is a growing impression in this country that the arrangements under which Scotch appeals are heard and disposed of are unsatisfactory. The committee have reason to believe that in this view the Faculty generally concur. And they are bound to say, that they think the feeling would have been greater, but for the fortunate circumstance, that two very distingushed members of the House of Lords, who have for some years taken a part in the hearing of Scotch appeals, are well acquainted with the principles, and also, in so far as is possible in the case of English lawyers,
VOL. XV. NO. XXIX.