Taylor v Best, Drouet, Sperling and Clarke
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1854 |
| Date | 31 January 1854 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 201
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 2 C. L. R. 1717; 23 L. J. C. P. 89; 18 Jur. 402; 2 W. R. 259. Discussed, The Charkieh, 1873, L. R. 4 Ad. & E. 90. Referred to, Parkinson v. Potter, 1885, 16 Q. B. D. 157. Discussed, Musurus Bey v. Gadban, (1854) 1 Q. B. 542; (1894) 2 Q. B. 362.
[487] taylor v. best, drottet, sperlin^, and clarke. Jan. 31, 1854. [S. C. 2 C. L. R. 1717; 23 L. J. C. P. 89; 18 Jur. 402; 2 W. R. 259. Discussed, The Charlcieh, 1873, L. R. 4 Ad. & E. 90. Referred to, Parkinson v. Potter, 1885, 16 Q. B. D. 157. Discussed, Musurus Bey v. Gadban, \ 18941 1 Q. B. 542 ; [18941 2 Q. B. 362.] A. " secretary of legation," accredited to the court of England by a foreign sovereign, and acting, in the absence of his ambassador, as charge d'affaires, is entitled to all the privileges of an ambassador.-And such a person does not forfeit his privilege by engaging in mercantile transactions here,--though the servants of the ambassador do, by virtue of the exception.in the 7 Anne, c. 12, s. 5.-An action having been brought against a foreign minister and three other persons, upon a contract entered into by them jointly in the country from which the minister was accredited, his attorney gave an undertaking to appear, and appeared and pleaded on his behalf, and afterwards obtained a rule for a special jury :-Held, that, by thus voluntarily (a) It is now, by the 31st section of "The Common Law Procedure Act, 1854," 17 & 18 Viet. c. 125, enacted that "no new trial shall be granted by reason of the ruling of any judge that the stamp upon any" document is sufficient, or that the document does not require a stamp." C. P. xvil-7* 202 TAYLOR V. BEST UC.B. 488. attorning to the jurisdiction, the minister was estopped from applying to the court to strike out his name, or to stay the proceedings, on the ground of his privilege.- Quaere, whether the privilege of an ambassador or foreign minister extends to prevent his being sued in the courts of this country, or only to protect him from process which may affect the sanctity of his person, or his comfort and dignity. This was an action brought by the plaintiff against the four defendants as directors of a society alleged to have been formed in Belgium for working the Eoyal Nassau Sulphate of Barytes Mines, .in the grand duchy of Nassau, to recover a sum of 2501. paid as a deposit on shares in the intended company. Best, Drouet, and Sperling pleaded severally never indebted. Clarke suffered judgment by default. The cause being at issue, and notice, of trial given for the sittings in London after last Michaelmas Term, the defendant Drouet, on the 8th of December, obtained a rule for a special jury. On the 10th of December last, a summons was taken out on behalf of the defendant Drouet, calling upon the plaintiff's attorney or agent, and the attorneys or agents for the defendants Best and Sperling, to shew cause at chambers why all further proceedings in this action should not be stayed, or why the name of the defendant Drouet should not be struck out of the proceedings in this action. This summons, which was attended before Talfourd, J., on-the 13th of December, was sought to be supported upon the affidavit (amongst others) of Drouet, which stated, that, about the year 1838, the deponent was duly appointed by and under the hand of his majesty the [488] king of the Belgians as second secretary of legation of his said majesty at the court of St. James's, and that he was presented and acted and was received as such at the said court, and was also present as such at the coronation of Her Majesty Queen Victoria: that, some few years afterwards, viz. about the year 1841, the deponent was in like manner appointed first secretary of legation of his said majesty the king of the Belgians at the said court of St. James's, and has since appeared at court and acted and been received as such at the said court: that, subsequently, and in like manner, the deponent was appointed councillor of legation of his said majesty the king of the Belgians at the said court: that, in the year 1849, the deponent was~ in like manner promoted to the rank of minister resident of his said majesty, and that, during the last fifteen years, the deponent had acted, as it was his duty by virtue of the said appointments, on at least as many as twenty occasions, as charge d'affaires, and sometimes for as long a period as eight months, in the absence of his excellency Silvan Van de Weyer, the minister plenipotentiary of his said majesty at the said court, and appeared as such at the last christening of a Eoyal prince: and that, during the presence of the said minister plenipotentiary, the deponent had acted, and acts, as first secretary of legation of his said majesty at the said court, and conducted and conducts the business of the embassy with the secretary of state for foreign affiairs of Her said Majesty, subject to the control of the said minister plenipotentiary, as such first secretary of legation: and that the deponent had also, during the said term of fifteen years, transacted business in respect of his various appointments with the successive secretaries of state of Her said Majesty for foreign affiairs : and that he was then, and had been at all times during the said term of fifteen years, a public minister of his said majesty the king of the Belgians, [489] accredited by that sovereign to, and received as such at, Her said Majesty's court of St. James's : that the deponent's attention was not particularly called to this action until about ten days since, by the receipt of a letter informing him that it was proceeding; the deponent having previously been led to believe, that, although proceedings had been threatened, they had been or would be abandoned, as being without foundation. The learned judge, upon hearing the parties, ordered that all further proceedings in the cause be stayed until the fifth day of the present term,-the costs of the application as between the plaintiff and Drouet to be plaintiff's costs in the cause, and that Drouet should pay to the other defendants their costs of appearing on that application. Upon affidavits stating in substance the foregoing facts, Willes, on a former day in this term, on behalf of the defendant Drouet, moved for a rule calling upon the plaintiff and the defendants Best and Sperling to shew cause why the proceedings should not be set aside, or why all further proceedings should not be stayed, or the name of Drouet struck out; or, in the event of the rule HC.B.490. TAYLOR V. BEST 203 not being made absolute, why the defendant Drouet should not be at liberty to withdraw his plea, and plead his privilege as a public minister. In the time of Lord Coke, a notion prevailed that ambassadors might be sued in respect of contracts made by them while resident in the country to the court of which they were accredited. Since that time, however, a contrary opinion ha& been entertained by publicists : and it is now the settled law of this country, and also of France, Holland, and America, that the jurisdiction of the courts is totally excluded as to ambassadors and public ministers, not only in civil proceedings, but also as to criminal matters, except perhaps [490] those of a very heinous character. Some of the cases which Lord Coke refers to in his chapter on ambassadors,-4 Inst. 153,-have since been reprobated. After giving instances of criminal proceedings against ambassadors, his lordship says : " But, if a foreign ambassador, being prorex, committeth here any crime which is contri jus gentium, as, treason, felony, adultery, or any other crime which is against the law of nations, he loseth the privilege and dignity of an ambassador, as unworthy of so high a place, and may be punished here, as any other private alien, and not to be remanded to his sovereign but of curtesy. And so of contracts that be good jure gentium, he must answer here. But, if any thing be malum prohibitum by any act of parliament, private law, or custom of this realm, which is not malum in se jure gentium, nor contra jus gentium, an ambassador residing here shall not be bound by any of them: but otherwise it is of the subjects of either kingdom, &o." In Stephen's edition of Blackstone's Commentaries, the subject is thus treated,-3rd edit., vol. 2, p. 477,-. " The rights, the powers, the duties, and the privileges of ambassadors are determined by the law of nature and nations, and not by any municipal constitutions: for, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own.country, their actions are not subject to the control of the private law of that state wherein they are appointed to reside. He that is subject to the coercion of laws is necessarily dependent on that power by .whom those laws were made: but an ambassador ought to be independent of every power except that by which he is sent, and of consequence ought not to be subject to the mere municipal laws of that nation wherein he is to exercise his functions. If he grossly offends, or makes an ill use of his character, he may be sent home, and ac-[491]-cused before his master (a), who is bound either to do. justice upon him, or avow himself the accomplice of his crimes (b). But there is great dispute among the writers on the law of nations, whether this exemption of ambassadors extends to all crimes, as well natural as positive, or whether it only extends to such as are mala prohibita, as coining, and not to those that are mala in se, as murder (c). Our law seems to have formerly allowed the exemption in the restricted sense only; for, it has been held, both by our common lawyers and civilians (d), that an ambassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall lose his privilege...
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