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In the Preamble it is stated that Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the King of the Belgians, being desirous of strengthening the friendly relations which unite the two countries, and wishing to regulate by special arrangements (forming a sequel to the General Postal Treaty concluded at Berne on the 9th October, 1874) the postal relations with the respective offices, have named as their Plenipotentiaries for this purpose certain distinguished persons whose names are then mentioned. The Treaty of Berne referred to, and to which this Belgian Treaty of 1876 is to form a sequel, being concluded in the year 1874, was specially confirmed by a Statute passed in 1875, 38 and 39 Vict., cap. 22, the Preamble of which is as follows: Whereas, under the Post-office Duties Acts, 1840 to 1871, divers powers are given to the Treasury of fixing by warrants the rate of British, foreign, and Colonial postage, and whereas by a Treaty made at Berne on the 9th October, 1874, and detailed regulations made under it, various stipulations and regulations have been made with respect to the duties on postage and other matters connected with the exchanges by post with foreign countries of letters, post-cards, books, newspapers, and other printed papers, patterns, and merchandise, legal and commercial documents, it goes on as follows: 'And whereas such Treaty and the regulations cannot be carried into effect except by the authority of Parliament, and that it is expedient to give such authority and to comprise in one Act the powers of the Treasury in relation to fixing the rates of postage, be it therefore enacted,' &c. The Statute then proceeds to enact a variety of provisions relating to the duty on the postage and of the Post-office, and provides by section 2 for the future enactments with foreign countries with respect to the conveyance of postal packets, and payments by the Treasury. This clause may perhaps suffice to render legally operative the clauses of the subsequent Belgian Treaty relating to these particular matters. I find in the Treaty a variety of enactments relating to the conveyance of mails between Great Britain and Belgium. By the Xth Article it is provided that 'the mail-packets shall be at liberty to take on board or land at Dover, as well as at other British ports where she may be obliged to put in, any passengers, of whatever nation they may be, their wearing apparel and luggage, also with their horses and carriages, on condition that the captains of the said packets shall conform to the regulations of the United Kingdom concerning the arrival and departure of travellers. They shall be prohibited from conveying goods or merchandise on freight, with the exception, however, of postal packets and small parcels, the weight of which shall be limited by mutual agreement between the two offices.'
"It is the VIth Article, however, which has the most important bearing on this case, and which has been chiefly discussed at the Bar. It is as follows: The packets employed for the conveyance of the correspondence between Ostend and Dover shall be steam-boats of sufficient power and size for the service in which they are to be employed. They shall be vessels belonging to Government, or freighted by order of Government. These vessels shall be construed and treated in the port of Dover, and in all other British ports at which they may accidentally touch, as vessels of war, and be there entitled to all the honours and privileges which the interest and importance of the service on which they are employed demand. They shall be exempted in those ports, as well on their entrance as on their departure, from all tonnage, navigation, and port dues, excepting, however, the vessels freighted by order of Government, which must pay such dues in those ports where they are levied on behalf of corporations, private companies, or private individuals. They shall not be diverted from their especial duty, that is to say, the conveyance of the mails, by any authority whatever, or be liable to seizure, detention, embargo, or arrêt de prince.'
"With respect to the interpretation of the last clause of this Article, it was agreed by counsel (and I am of the same opinion) that the words 'seizure, detention, embargo, or arrêt de prince' related to the belligerent rights of the Crown, including the droit d'angarie.
With respect to the other clauses of the Article, I think it cannot be denied that they purport and intend to place this Belgian packet in the category of a ship of war while in a British port; and it is remarkable that this privilege is not, by the words of the Article, to extend to these packets in territorial waters, or, so far as even British ports are concerned, to the high seas, and does not give them when on the high seas immunity from actions for salvage and collision happening out of a port; and, of course, the Treaty cannot constitute these packets ships of war in their relation to foreign States. If the Crown had provided without the authority of Parliament by this Treaty to order that the 'Parlement Belge' should be entitled to all the privileges of a ship of war, then the warrant which is prayed for against her as a wrong-doer on account of the collision cannot issue, and the right of the subject (but for this order, unquestionably) to recover damages for the injuries done by her is extinguished.
"This use of the Treaty making privilege of the Crown which I believe to be without precedent, and in principle contrary to the laws of the Constitution. Let me consider to what consequences it leads. If the Crown, without the authority of Parliament, may, by process of diplomacy, shelter a foreigner from the action of one of Her Majesty's subjects who has suffered at his hands, I do not see why it might not also give the like privileges of immunity to a number of foreign merchant-vessels or to a number of foreign individuals. The law, indeed, incorporated those portions of international law which give immunity and privilege to foreign ships of war and foreign Ambassadors; but I do not think it has, therefore, given the Crown authority to clothe with this immunity foreign vessels which are entirely vessels of war, or foreign vessels which are entirely Ambassadors' vessels.
"Let me say one word more in conclusion. Mr. Bowen, in his very able speech, dwelt forcibly upon the wrong which might be done to this packet if, being invited to enter the ports of this country with the privileges of a ship of war, she should find them denied to her. I acknowledge the hardship, but the remedy, in my opinion, is not to be found in depriving a British subject, without his consent, direct or implied, of his right of action against a wrong-doer; but by the agency of diplomacy, and proper measures of compensation and arrangement, between the Governments of Great Britain and Belgium. I must allow the warrant of arrest to issue.
Mr. Gorst, on behalf of the Attorney-General, applied for a postponement of the issue of the warrant, and a stay of execution, in order that notice of appeal might be given.
His Lordship: "The execution will be stayed for a fortnight, and the question of costs will be suspended."
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