PART I.

PERSONS.

CAP. V.

Holroyd, J., proceeded is directly contrary to the express words of the statute, which provide that all writs thereafter sued forth or prosecuted, whereby . . . . the domestic servant of any ambassador or public Minister may be arrested or im- Foreign prisoned, or his goods and chattels may be seized, distrained, Ambassadors. or attached, shall be deemed and adjudged to be utterly null and void to all intents, constructions, and purposes whatsoever.(a) The case is said to have been one of considerable suspicion, and must probably be regarded as an instance of the law being strained to fulfil the presumed requirements of expediency and moral justice.

immunity.

The privilege of immunity is expressly conferred upon the Extent of goods as well as the person of all who are entitled to it, but statutory this exemption does not attach to all such goods without qualification. Where the claimant of the privilege, as chorister to a foreign ambassador, resided in a separate house, part of which he let out as lodgings, was a teacher of music and languages, and also acted as prompter at one of the London theatres, it was held that his goods in that house, not being necessary for the convenience of the ambassador, or for the due performance of the claimant's service, were liable to be distrained for poor-rate.(b) In this case the Court seems to have considered that the goods seized were possessed by the claimant, not in his capacity of ambassador's servant, but in some other character. The question how far the protection of the statute attached to goods of an ambassador's servant dehors the house of the ambassador was also raised in Fisher v. Begrez,(c) but it was unnecessary to decide it, the Court coming to the conclusion that the affidavits did not sufficiently show that the claimant was a domestic servant to the ambassador at all; and that the fact that his name was included in the list which had been registered in the office of the Secretary of State, and transmitted to the sheriff's office, was insufficient. The object of that list, it was said, was to call the attention of the sheriff to the names registered, and to protect him, in case the party against whom he should execute process should claim the diplomatic immunity without having been registered.(d)

The statutory immunity conferred by this Act does not Statutory attach to consuls, (e) and must in strictness be confined to those not extended

(a) 7 Anne, c. 12, s. 3. (e) I C. & M. 117.

(b) Norello v. Toogood, 1 B. & C. 554.

(d) Fisher v. Begrez, 1 C. & M. 127; Hopkins v. De Robeck, 3 T. R. 79, 80;

Delralle v. Plumer, 3 Camp. 48.

(e) Viveash v. Becker, 3 M. & S. 284; Clarke v. Cretico, 1 Taunt. 105. See note on Consuls at end of this chapter.

immunity

to consuls.

PART I. PERSONS. CAP. V.

Foreign

whom it mentions—namely, ambassadors or public Ministers and their domestic servants. It has already been said that in general writers on public international law consider that it properly belongs to the wife and family, servants and suite of Ambassadors. the Minister, as well as to all persons attached to the legation or embassy; but it must be very doubtful how far any protection beyond that conferred by the statute can be claimed in an English court. "I cannot help thinking," said Lord Ellenborough, "that the Act of Parliament, which mentions only ambassadors and public Ministers, and which was passed at a time when it was an object studiously to comprehend all kinds of public Ministers entitled to these privileges, must be considered as declaratory, not only of what the law of nations is, but of the extent to which that law is to be carried." These considerations, however, can only apply to the issue and service of the writs to which the statute is confined, and to such persons as the Legislature may fairly be taken to have contemplated, and not to extraordinary representatives of a foreign Government, whose office has been called into existence by a special occasion. Thus, in Service v. Castaneda(a) it was held that an injunction could not be sustained against the agent of a foreign Government, whose business in this country was only that of settling certain claims upon the Government he represented, and whose acts in that capacity were done entirely under the control of the ambassador of that Government resident in England. If the statute of Anne," said the ViceChancellor," does not apply to this particular case, the Common Law does."

Common Law
immunity
from suit-
not affected
by statute.

It will be observed that the Act refers only to the issue and service of writs whereby the person or goods of ambassadors or their servants may be seized or attached. It was not intended by it to abridge the immunity given to ambassadors by the law of nations, that they shall not be impleaded in the courts of the country to which they are accredited.(b) Not only is this a principle of international law, but it was expressly laid down by Lord Campbell in 1859 that a public Minister duly accredited to the British Crown by a foreign State is privileged from all liability to be sued here, quite apart from the operation of the statute of Anne; (c) and this principle may of course be extended, theoretically speaking, to the ambassador's family and suite, and members of the legation,

(a) 2 Coll. 56.

(b) Per Lord Campbell, 28 L. J. Q. B. 310, 315.

(c) Magdalena Steam Navigation Co. v. Martin, 28 L. J. Q. B. 310.

PART I.

PERSONS.

CAP. V.

Foreign

though there is no English authority practically carrying the doctrine further than the case just cited. In Taylor v. Best,(a) indeed, the Court had hesitated to carry it so far, and while holding that the defendant had waived his privilege, if any existed, by appearance and plea, left it doubtful whether an Ambassadors. ambassador could be sued at all by process not affecting his person or his goods, when there had been no such waiver. In the more recent case of In re Cloete,(b) the privilege claimed was refused to an alleged honorary attaché of the Persian embassy, on the grounds (1) that he was not a bona fide member of the embassy, (2) that he had not been recognised as such by the British Government or Foreign Office, (3) that the appointment was improperly obtained to defeat creditors, and (4) that he had waived the privilege (if any) by consenting to judgment.

The case of Taylor v. Best is an authority for the proposition Ambassadors' that an ambassador does not lose his privilege by trading in waived by privilege not the country to which he is accredited, which has been already trading. stated. "The privilege," said Jervis, C.J., "is not, in the case of a Minister, interfered with or abandoned by the circumstance of trading, as it would be if the claim were set up in respect of the privileges of a servant of the ambassador under the statute of Anne. If an ambassador or Minister violate the character in which he is delegated to this country, by entering into commercial transactions, that raises a question between the country to which he is sent and the country from which he is sent; but he does not thereby lose any privilege to which he may be entitled; the privilege being a general privilege, and the limitation attached to the privilege, by reason of trading, being confined by the statute of Anne to the case of servants of the ambassador, who may lose the privilege."(c) It was, however, held that the defendant in this case had lost. his privilege by not taking the objection at an earlier stage of the action, and a rule to strike his name out of the record was consequently discharged.

Inasmuch as while the immunity of an ambassador or Minister exists, it is not competent for any person to sue out

(a) 23 L. J. C. P. 89. See Macartney v. Garbutt, 24 Q. B. D. 368 (1890), where it appears to have been assumed that the defendant, who was a member (as secretary) of the Chinese Embassy, was an ambassador or public Minister within the statute of Anne. There can be little doubt that the statute 35 Geo. III. c. lxxiii., referred to in that judgment, intended to deal with persons affected by the statute of Anne, and such persons only.

(b) In re Cloete, 65 L. T. Rep. N. S. 102.

(c) Taylor v. Best, 23 L. J. C. P. 89, 93; 14 C. B. 487; Barbuit's Case, Cas. temp. Talbot, 281.

PART I. PERSONS.

CAP. V.

a writ against him, or to renew a writ if issued, it has lately been held that the Statute of Limitations does not begin to run against his creditors during the period of such immunity.(a) Foreign And it appears by the same case that the immunity continues Ambassadors. not only whilst the ambassador is actually accredited, but for a reasonable time after he has been recalled, or has otherwise ceased to hold office. In the event of his death, it is usual to continue the same privileges and immunities to his widow, family, and suite for such reasonable period as may be sufficient to enable them to leave the country.(b)

Whether or not the immunity or privilege attaches, when the servants of the ambassador are subjects of the State against whose laws they assert it, must still be regarded as doubtful, as a general principle. In England the question is not of much importance, inasmuch as the statute of Anne is certainly not limited to non-subjects. The Prussian Courts, in a case which arose in 1888 with respect to a coachman hired by the French ambassador, appear to have held that the mere fact of the accused being a Prussian subject excluded him from the privilege claimed. The United States Government seems to adopt, or at any rate to sanction, this rule.(c) In England it has been held by Mathew, J., with respect to actual members of a foreign embassy, that they are entitled to the privilege, although they happen to be British subjects, unless received by the British Government upon the express condition that they should be subject to the local jurisdiction.(d)

SUMMARY.

FOREIGN CORPORATIONS, STATES, SOVEREIGNS, AND

AMBASSADORS.

(i.) Foreign Corporations.-The artificial personalities or corporate bodies which are created by the municipal laws of pp. 126, 127. foreign States are recognised in English courts, when their character is substantially the same as that of a corporation created by English law.

(a) Musurus Bey v. Gadban (1894), 2 Q. B. 353. Cf. Magdalena St. Nav, Cv. v. Martin, 2 E. & E. 94.

(b) Phillimore, Int. Law, vol. vii. p. 264

(c) See Law Magazine and Review, August 1889, p. 365; Wharton on Int. Law of the U.S. vol. i p.

644.

(d) Macartney v. Garbutt, 24 Q. B. D. 398, 1890.

PART L PERSONS.

CAP. V.

A foreign corporate body may therefore sue and be sued in England under its corporate name; and the provisions in the Rules under the Judicature Acts, for service of a writ of summons or notice thereof abroad, apply to these artificial as well Pp. 128-133as to natural persons.

Where a foreign corporation carries on business at a branch office in England, with a clerk or officer in the nature of a p. 132. head officer there, whose knowledge would be the knowledge of the corporation, service of a writ may be effected on such officer. If there is no such officer in England, notice of the writ should be served on the head office of the corporation abroad.

The recognition accorded by English Courts to foreign corporations does not, except as above stated, expose them to the operation of the English enactments regulating English cor- pp. 133–135. porations; unless, it seems, their creation proceeded from the laws of a jurisdiction subordinate to the British Crown.

A foreign corporation, though incapable of domicil in the strict sense, may reside beyond the limits of the State which created it. Except perhaps for the purposes of jurisdiction pp. 137-144and service of process, a foreign corporation resides only in the principal seat of its business. Such residence is a question of fact, in which the locality of its incorporation and registration, the seat of its governing body, and the place where its profits are made, realised, or remitted, are all elements to be considered.

Foreign corporations, when litigant in an English Court, p. 145. occupy the same position with regard to the conduct of the action as natural persons, and may be compelled to make discovery and answer interrogatories by a proper representative.

(ii.) Foreign States and Sovereigns.-Foreign States, or bodies pp. 148, 149. politic created by international law, occupy a position analogous to that of foreign corporations. In the case of monarchical governments, the Sovereign may be regarded as a corporation sole, representing the State; in the case of democratic or republican governments, the State itself, under its international name or style, as a body politic, may be regarded as a corporation aggregate.

The sovereign power of a State, in either of these two cases, pp. 151–153. may sue in an English Court under its quasi-corporate or politic name in respect of the public property and choses in action of the nation which it represents. The Sovereign, in the case of a monarchical government, may also sue in respect of his

M