PUBLIC RECORD OFFICE
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TLC.O.
885
PUBLIC RECORD OFFICE, LONDON
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decision. The expediency of firmly insisting on this principle being strictly recog- nised and practically adhered to by foreign Governments appears to be increased rather than diminished by the great practical legislative independence actually en- joyed by certain Colonies.
There would seem to me, moreover, to exist peculiar and obvious reasons for a rigorous adherence to this principle in the case of French Consular privileges in Canada, in which Colony only France and the United States have Consuls, the French Consulate therein being moreover of recent origin, and there being a considerable French population, not perhaps altogether without French sympathies. As a prece- dent nothing can be more inconvenient than to encourage or permit the discussion of such questions as the present being commenced by Foreign Governments with one or more of the Colonies separately.
I am aware that this portion of the subject is rather of a political than of a strictly legal aspect; but, considering the serious resulta which may ensue from this portion of the note being passed over in silence, I trust that I may be excused for freely expressing my opinion.
.
With reference to the concession of the particular personal and fiscal privileges claimed by the Consul, I must observe that I am without any information of what is the law or practice of Canada upon the points insisted on in the note. I assume, however, that none of these privileges are, in fact, thereby given to Consuls. I can only say (generally) that neither by international law, nor by the law of England, nor by the existing usage in England, are Consuls entitled to any of the exemptions or privileges alluded to; and that to confer on them such privileges, for instance, as independence of all the civil tribunals of the country, and freedom from personal arrest or restraint in all civil suits, would necessitate not only express and special legislation in every portion of Her Majesty's dominions which has a separate legisla- ture, but would entail a wide departure from the existing system of jurisprudence and procedure.
The privileges conceded to the Consuls of one nation could not consistently or con- veniently be withheld from those of others, and inasmuch as many of Her Majesty's subjects act as Consuls in Her dominions for foreign powers, the various anomalies your Lord- and inconveniences resulting from any such concessions will be obvious to
such ship. The French Government must be well aware of the probable result of any application if made directly to Her Majesty's Government, and has been probably tempted to try this partial experiment by the peculiar circumstances of Canada, in the hope of thus establishing a precedent, and laying a foundation for obtaining similar concessions in other parts of Her Majesty's dominions.
Foreign Consuls have in some few instances already made faint and desultory attempts in the same direction, but always without success. I would beg to invite your Lord- ship's attention to the Law Officers' Report of December 16th, 1853 (on a note from the Belgian Minister), and to my Report of the 13th November 1856 (on the subject of a Spanish Vice-Consul at Bathurst, Gambia. These reports appear to render it unnecessary for me to offer any further observations on the actual legal “status and privileges of Foreign Consuls in the Queen's dominions.
I would therefore suggest that in the event of its being ascertained that this note was originally authorised or is now adopted by the French Government that an answer should be returned to it, pointing out (first) the irregularity of the Consul's attempts to raise a general discussion as to his "status" and privileges by international law with the Colonial Government, and especially of his invitation to that Govern- ment to "take the initiative" in this matter; and (secondly) cautiously, but decidedly, refusing to concede any of the claims thus put forward, or even to continue under the circumstances & discussion needlessly and irregularly commenced by the French Consul in the Colony of Canada,
The Lord John Bussell,
&c.
&c. &c.
I have, &c. (Signed) J. D. HARDING.
5564.
SIB,
No. 17.
(CAPE OF GOOD HOPE.)
JUDGE ADVOCATE GENERAL to HORSE GUARDS.
Judge Advocate General's Office, May 19, 1860.
In reply to your letter of 14th instant, transmitting the copy of a letter from the Home Office with its enclosures, all of which documents are herewith returned, and requesting my opinion respecting the case of Patrick Brennen who was sentenced by a general court-martial, held at Cape Town on the 8th November last, to four years penal servitude, I have the honour to submit the following observations.
It appears from the petition that was transmitted to his Grace the Duke of New- castle by the prisoner's father that the legality of such sentence is questioned on the ground that the prisoner having received his discharge from the 1st Troop 2nd Brigade Bengal Horse Artillery, and having been granted a free passage to England, had ceased at the time of the committal of the offence for which he was arraigned, namely, when the vessel was in harbour at the Cape of Good Hope, to be amenable to military law.
In considering this case I must be understood to view it as though the prisoner had belonged to the forces of the late East India Company, and had been transferred to the service of Her Majesty by virtue of the provisions of the statute 21 & 22 Vict. c. 106. s. 56; and further, that he had received his discharge from the service in the manner that had prevailed previously to the passing of the statute above mentioned. In that view of the case he would have been subject to the Mutiny Act for the govern- ment of the East India Company's forces (viz., statute 20 & 21 Vict. o. 66.), and would, in the present instance, have been amenable to the provisions of the 54th section of that statute, which, after enacting that soldiers entitled to their discharge may claim to be sent home free of expense, contains the following proviso: "Provided always, "that every such soldier entitled to, and claiming his discharge, and to be sent to "Great Britain or Ireland as aforesaid, as also any other soldier in the service of the "East India Company entitled to be sent to Great Britain or Ireland shall, until his "arrival and debarkation in Great Britain or Ireland, be subjected to the provisions of "this Act and the Articles of War framed by Her Majesty for the better government "of the Company's forces; and Her Majesty may by such Articles of War provide for "the punishment of any such soldier who on the passage shall be guilty of drunken- ness, or of any dishonest, disorderly, cruel, indecent, or disgraceful conduct, by "sentence of a court-martial to be held under the Mutiny Act and Articles of War for the time being in force for Her Majesty's forces, and may direct that for the purposes of such court-martial and punishment he shall be considered as belonging to any regiment in Her Majesty's service, and be punishable in the same or the like manner aa if the offence had been committed whilst serving with such regiment, and as if any advantages he may be entitled to by service were advantages arising from "service in Her Majesty's forces."
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14
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The 130th Article of War is framed with reference to this section of the Mutiny Act, and provides for the case of "disorderly conduct."
I am of opinion that the soldier in question (if discharged in the manner I have above supposed) was at the time of the committal of the offence charged subject to the provisions of the Mutiny Act for the government of the East India Company's forces, and was consequently liable to be tried and sentenced in accordance with these provisions.
I may here add that on a perusal of the record of his trial Lee no legal reason for thinking that the sentence of the court cannot properly be enforced.
I have, &c. (Signed) THOMAS E. HEADLAM, Lieutenant-General Sir Charles Yorke, K.C.B.,
&c.
&c.
&c.
⚫ 16270.-4.
95,--2/66,