Taylor v Best, Drouet, Sperling and Clarke

JurisdictionEngland & Wales
Judgment Date31 January 1854
Date31 January 1854
CourtState Trial Proceedings
TAYLOR against BEST AND OTHERS. PROCEEDINGS IN THE COURT OF COMMON PLEAS ON A RULE TO STAY PROCEEDINGS IN THE ACTION OF TAYLOR AGAINST BEST AND OTHERS, BEFORE JERVIS, C.J., MAULS, CRESSWELL, AND WILLIAMS, JJ., JANUARY 12TH, 30TH, AND 31sT, 1854. (Reported in 14 C.B. 487 ; 23 L.J. N.S. C.P. 89; and 18 Jur. 402.) Action against the secretary of the Belgian Legation in London, sued with others as joint-contractors on a commercial contract, and therefore a necessary party to the action. The secretary, having appeared and pleaded, and moved for a special jury, afterwards moved to stay proceedings in the action, or that his name should be struck out, on the ground of diplomatic privilege. The Diplomatic Privileges Act, 1708, 7 Ann. c. 12, enacts, s. 3, that all writs and processes whereby the person of any ambassador or other public minister of any foreign prince or state .. . may be arrested or imprisoned, or his or their goods and chattels may he distrained, seized, or attached, shall he deemed and adjudged utterly mill and void; " but provides, s. 5, that no merchant or trader " who shall put himself into the service of any such ambassador or public minister " shall take any benefit under the Act. Held by the. Court of Common Pleas- !. Diplomatic Privilege Secretary of Legation Trading-7 Ann. c. 12. s. 5. Waiver. A secretary of legation accredited to the court of England by a foreign sovereign is entitled to the same legal immunities as an ambassador.(1) Such a secretary of legation does not by engaging in trade become a merchant-trader who has " put himself into the service" of an ambassador within the meaning of the statute, or thereby forfeit his diplomatic privileges. (2) 7 Ann. c. 12. s. 3 Extent of Diplomatic Immunity Waiver. Quare, whether an ambassador or minister is privileged from being sued in the courts of this country, or only from process affecting his person, comfort, or dignity.(2) In this case, by appearing, pleading, and obtaining an order for a special Jury, the secretary had voluntarily submitted to the jurisdiction, and could not have his name struck out, or the proceedings stayed, before the trial of the issue. The sacred character of the person of an ambassador cannot be abandoned by any act or consent on his part, but, consistently with this principle, an action in which he was sued jointly with others might be allowed to proceed to judgment, and the judgment be enforced against the other defendants. (I) See Parkinson v. Potter, 16 Q.B.D. 152, 55 L.J. Q.B. 153 ; Macartney v. Garbutt 24 Q.B.D. 368. (2) See Magdalena S.N. Company v. Martin, 2 E. & E. 94; The Parlement Belge, 5 P.D. 197 ; Musurus Bey v. Gadban, 1894, 1 Q.B. 533, and 1894 2 Q.B. [C.A.] 352. The judgment of the Court of Appeal in the last case appears to decide that under 7 Ann. c. 12. a writ of summons in an action against an ambassador will be void ; as to whether this judgment overrules the decision in the present case, that an ambassador may to some extent waive his privilege and submit to the jurisdiction, see the remarks in Dicey, Conflict of Laws, p. 211. On the general subject, see Wheaton, International Law, ed. Boyd, 225b; Hall, International Law, 50; Lawrence, Principles of International Law, pp. 274-284. This case raised a question as to diplomatic privilege. It was an action brought by the plaintiff against the four directors of an intended company to recover a sum of 2501. paid as a deposit on shares in the company. The company was alleged to have been formed in Belgium for the purpose of working the Royal Nassau Sulphate of Barytes Mines, in the grand duchy of Nassau. One of the defendants, M. Dronct, was first secretary ef. t he Belgian Legation in London. M. Drouet and two other defendants, Best and Sperling, pleaded severally never indebted ; the fourth suffered judgment by default. The cause being at issue, and notice of trial given for the sittings in London after Michaelmas Term, the defendant Drouet, on the 8th of December 1 1853, obtained an order for a special jury. On 10th of Decemberfollowing, a summons was taken out on behalf of the defendant Droact, calling upon the plaintiffs atter/toy and the attorneys for the defendants 319] Taylor against Best and others, 1854. [320 Best and Sperling to show 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. The case came before TALFOURD, J., at chambers, on December 13th, 1853, when Drouet stated on affidavit, that about the year 1838 he had been duly appointed by and under the hand of His Majesty the King of the Belgians as second secretary of legation of his said Majesty at the court of St. Jamess, 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, he was in like manner appointed first secretary of legation of his said Majesty the King of the Belgians at the said court of St. Jamess, and had thenceforward appeared at court and acted and been received as such at tho said court: that subsequently, and in like manner, he had been appointed councillor of legation of his said Majesty the King of the Belgians at the said court: that, in the year 1849, he had been in like manner promoted to the rank of minister resident of his said Majesty, and that, during fifteen years, he had acted, as it was his duty to act by virtue of the said appointments, on at least as many as twenty occasions as charge daffaires, 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 bad appeared as such at the recent christening of a royal prince : and that, during the presence of the said minister plenipotentiary, he had acted and still acted as first secretary of legation of his said Majesty at the said court, and conducted and still conducted the business of the embassy with the Secretary of State for Foreign Affairs of her said Majesty, subject to the control of the said minister plenipotentiary : and that he 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 Affairs ; 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, accredited by that sovereign to, and received as such at, her said Majestys court of St. Jamess : that his attention was not particularly called to this action until about ten days before taking out the summons by the receipt of a letter informing him that it was proceeding, and that be had pre- viously been led to believe that, although proceedings had been threatened, they hadbeen or would be abandoned, as being without foundation. TILFOURD, J., upon hearing the parties, ordered that all further proceedings be stayed until the fifth day of the ensuing term the costs of the application as between plaintiff and Drouet to be plaintiffs costs in the cause, and that Drouet should pay to the other defendants their costs of appearing on that application. Ix THE COURT OF COMMON PLEAS. Before JERVIS, C.J., MAULE, WILLIAMS, and CRESSWELL, J.J. January 12th, 1854. MOTION FOR RULE Nisi. TV illes,(a) on behalf of the defendant Drouet, moved for a rule calling upon the plaintiff and the defendants Best and Sperling to show 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 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 whilst resident in the country to the court of which they were accredited. After giving instances of criminal proceedings against ambassadors, he says (b) "But, if a foreign ambassador, being pi-0re%, committeth here any crime which is contra 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 is not to be remanded to his sovereign but of curtesy. And so of contracts that be good jure !maim, he must answer here. But if anything be nadum prohibitune 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 ally of them: but otherwise it is of the subjects of either kingdom, &e." Since that time, however, a contrary opinion has 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 but also in criminal proceedings, except perhaps those of a very heinous character. (a) Afterwards a Justice of C. P. (b) 4 Inst. 153. 321] Taylor against Best and others, 1854. [322 In Blackstones Commentaries, the subject is thus treated (a) :- " 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, ho 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...

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