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CSC.No. 3680.
HongKong.
Hong Kong. 8th December, 1874. Received 8th December, 1874.
The Attomey General (Hon ble John Branston)
to
The Colonial Secretary (Honble I. Gardiner Austin)
Ellis v. Mitchell- Concurs in the judgment of the Full Court in the case of -
THE CHINA MAIL.
HONGKONG, TUESDAY, DEC. 1, 1874.
SUPREME COURT. APPELLATE JURISDICTION. ELLIS. MITCHELL ON APPEAL, December, 1st 1874. The following is the judgment of the Full Court in this case.
The Chief Justice Sir John Smale, said :--- Our decision in this appeal having been for some time come to, we handed to the Ke- gistrar our concluded judgment, and by our direction he gave it out on the 7th of November last.
That decision was in the following terms. We have fully considered all the facts in this case and the very able arguments which, on the part of the appellant, Mr Kingsmill submitted to us. The respondent, did not appear.
We are of opinion that the appellant has failed to shew that the decision in the Sum- mary branch of this Court is wrong. It is our duty therefore to dismiss this appeal The respondent has incurred no costs, we say nothing as to conta.
Some questions as to the duties and jurisdiction of Consuls have arisen in this case to which we should wish to advert, but as these questions arise out of this case, rather than lead up to our decision, we pur- pose at a more convenient opportunity to refer to them. It seems to us that a some what exagerated notion as to the duties and jurisdiction of consuls in this Colony is prevalent.
The Chief Justice further said :-The grounds and reasons for the decision in this casu were very carefully considered and con- ferred on between us. We were agreed in the conclusion that the appeal muat be dismissed. In order that the parties might not be kept longer in suspense, we directed the decision which I bave just read to be given out by the Registrar on the 7th November, as I bave already said.
There seems to have been a grave mia- I apprehension that this case came before Mr Justice Snowden as an appeal from the decision of the Consul of the United States, It was not so. From the first it was treated by the learned Judge as being un- touched by decision, and, indeed, as a matter entirely ultra wires the Consul of the United Staten.
True it is that a discharge of the plaintiff from the abip, and an account taken in the presence of the Consul of wages earned, were produced and relied on by the defend- ant, the master of the ship, as an answer to the plaintiff's claim; but it was held in the Summary branch of this Court, upon the evidence before it, that in no way was the Consul acting or intervening judicially, either as to the discharge, or as to the account. No claim for unlawful dismissal bad been raised before the Consul ΣΕ might have been properly raised before the propar judicial tribunal of and within the United States; but no evidence was adduced to shew that that authority was rested by the law of the United States in the Consul here. Even if it had been so vasted by any such law of the Union, it required the force of a treaty, and of an det of Parlin- ment, or local ordinance, to enable the Consul to exercise any extraterritorial judi- cial power within British territory,
Although some instructions to the Consul were produced to the Court, no Ast of Congress was produced, nor was there say evidence that there was any such Act, or common law power in a Consul.
According to Chancellor Kent's Commen- taries, Vol. 1, p. 50, and seg "Consuls are commercial agents *
In some places they have been invested with judicial powers over disputes between their own merchants in foreign parts but in the commercial treaties made by Great Bri:ain there is rarely any stipulation for clothing them with fudicial authority, except in treaties with the Barbary powers. And in England it has been held that a Consul is not strictly a judicial officer, and they have there no judicial porter." He cites Waldron 4. Coombe, 3 Taunton, 182. The words of the Chief Justice Mansfield there are,
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"The Vice Consul is no judicial officer." At paga 51, the very learned Chancellor proceeds "No Government can invest its Consula with judisial powst over their own subjects in a foreign country without the consent of the Forsign Government founded on Treaty."
At page 62 he says.—“It is likewise made their duty (4.6. of Consula) where the Lasts of the Country permit, to administer on the personal estates of Amercian Citizens dying within their Oopsulates do.” And in note (6) he says," American Consuls cannot take cognisance of the offences of sostmen in foreign ports, nor exempt the master from bis own responsibility." He cites Ware's Reports (American) 387. And to concitide all be says, at page 59, "The Consular convention betweeu France and this Coun- try (ie. the United States) in 1778 allowed Consula to exercise polles over all vessels of their respective nations within the interior of the vessels, and to exercise a species of civil jurisdiction by determining disputes concerning wages, and between the masters and crews of Yeasels belonging to their own country. The jurisdiction claimed under the Consular convention with France was merely voluntary, and altogether exclusive of any coercive autho rity, and we (i... the United States) have no treaty at present which concedes even such consular functions."
Wa quote the 9th edition of Kent's com- mentaries (1858). We have before us the valuable work of Judge Bouvaine, The Law Dictionary, the 4th edition of 1872, and in it we find nothing to vary all that Chanoel- lor Kent asserta.
Parsons' Law of Shipping, published in 1869, in to the same effect.
One quotation from Partons' vol. 2, p. 56. He there aaya, "a discharge (i, s. of a seaman), when made in a foreign port, is required to be made before the Consul; but the payment of wages already due is not.” "And this to auch an extent that the learned ! author adds ** and the Consul has no right to charge a commission for witnessing the settlement," in other words, he has nothing to do with the settlement of the wages due; a fortiori he has no authority in reference to damages for breach of contract, or other- wise between the master and the seaman.
Now if the Consul has no such authority, the authority must be somewhere, and it cannot be contended upon any grounds of which we are aware, that this Court has not the fullest authority over all such disputes.
It is quite clear that the legislature of this country can by statute or ordinance give extraterritorial powers to Consule, but as all such powers are in derogation of the Royal prerogative, all such laws must be construed strictly.
It appears to us that Ordinance No. 4 of 1850 has no bearing on the question before 114. It relates to cases of desertion from ships and to nothing else,
Ürdinance No. 6 of 1862 is prohibitory; it says that no British seaman shall be dis charged elsewhere than at the Harbour Master's office, and that every seaman dis charged from a foreign ship, represented by
• Consul hers, "shall within 24 hours of being discharged at the offics of his Consul, or Vice Consul, produce at the Harbour Master's office a certificate of bis dis- charge,"
Now this is not an enabling statute and it gives no power to any Con- sul which he had not before. All it does is to assume that every discharge of a foreign seaman will have been given at the office of the Consulate of bis country,
But for legislation the discharge of a sea- man is a matter between master and sea. man only.
No treaty has been produosd, no set of Parliament or Ordinance, other than those above cited, has been brought to the notice of this Court. In the absence of any such we are driven back to the International Law as laid down by Chancellor Kent p. 51., that the Consul of the United States is not a judicial offoer, "that they have no judicial power,” and, page 59, that there is no treaty with the United States which authorises Consuls to exercise a species of jurisdiction by determining disputes con- verning wages between masters and crews of vessels belonging to their own country in this Colony,
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