PUBLIC RECORD OFFICE
C.O. 8
Reference :-
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PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-
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in Japan should receive whatever professional assistance in the discharge of their duties and in defending any actions brought against them for their public and official sote the Attorney General may be able to render them.
With reference to the more general question recommended to our special considera- tion, we must observe:
1st. That the personal presence of consular officers, either at Hong Kong or in any other Colony, or in England, where legal proceedings may be instituted against them for damages in respect of their official acts, is, as a general rule, by no means essential to their protection.
2nd. There was, in our opinion, in this case no necessity for Mr. Alcock's leaving Japan and proceeding to Hong Kong, merely by reason of his having received notice of action at the suit of Mr. Moss.
3rd. As a general rule, consular officers should be instructed not to leave their posts in such cases; and the Law Officers of the Crown, at whatever place such proceedings may be instituted or pending, should be generally instructed in such cases to appear for them and defend their interests, and generally to act on their behalf as they may consider most convenient.
These suggestions, if properly carried out in practice, will tend greatly to obviate many of the serious results alluded to in Mr. Hammond's letter.
We must add :
4th. That if consular officers in countries like Japan will neither publish "rules and regulations," as they are specially instructed and required to do, nor construe and apply the extraordinary criminal jurisdiction and powers entrusted to them with ordinary judicial discrimination, it will be scarcely possible for Her Majesty's Government altogether to shelter and protect them from all liability in respect of acts of serious illegality, which, although done optima fide, and with the most honest intentions, are attended with the gravest and most injurious results to individuals.
5th. The 41st section of the Order in Council of January 23rd, 1860 (Japan), provides, to a certain extent, for the protection of consular officers, and all persons acting under the authority and in execution of the power or jurisdiction of Her Majesty entrusted to them by the order, or in the execution of any of the provisions of the order; and if it should be considered by Her Majesty's Government necessary for the public interest to extend the protection already secured thereby, and by the general law to consular officers in respect of their judicial acts, we can only say that the whole subject should be maturely considered upon Imperial grounds, and such further legislative action there- upon taken as may be thought expedient and practicable. An Order in Council cannot protect those who sot in excess of its provisions, and not "under or by virtue of its authority," and the Legislature may be reluctant to provide for exceptional cases.
We consider it our duty to observe that Mr. Moss's case does not appear to us to be either "per se," or as one of a class of cases, of such a character or complexion as to call for any further legislative enactment.
Were the practices of going out shooting or of carrying arms properly restrained by "Consular Rules and Regulations" in Japan such cases would seldom, if ever, recur.
With reference to the papers which we are desired by Lord Wodehouse's letter of the 28th June to take into our consideration, we have to observe that, in our opinion, no action can be successfully maintained by Mr. Moss against Mr. Alcook in the Supreme Court at Hong Kong in respect of the treatment which Mr. Moss suffered, under what we have already advised was the illegal sentence pronounced by Mr. Alcock under the Order in Council of 23rd January 1860; the Court is to exercise jurisdiction "concurrently with Her Majesty's Consul" only (section 28), and the Consul is unable, of course, to exercise jurisdiction in a case to which he himself is a party.
With reference to protecting statutes, to which Mr. Small, the Attorney General for Hong Kong, refers at large. The case stands thus:
1st. The 42 Geo. 3. c. 85. s. 6. only extends to public officers having power abroad to commit persons to safe custody, the privileges of 21 Jac. 1. o. 12.; and that with the qualification that acts done abroad may be described in pleading as done at Westminster, that in effect only conferring upon a defendant within its provisions the privilege of pleading the general issue, and giving his defence in evidence under it.
2. The 11 & 12 Vict. o. 44. (Jervois' Act) has no bearing upon the case.
It relates
in its terms to justices of the peace only, and is not like the 21 Jac. 1. c. 12. extended by any other statute to officers abroad, &c.
3. Under the Order in Council of 23rd January 1880 (section 41) the provisions of the foreign jurisdiction Act, 6 & 7 Vict. o. 49., are made applicable to persons in the position of Mr. Alcook, and those provisions require the action to be brought within s
limited time, and the defendant is also entitled to notice of action, and may tender amends, as is provided in favour of justices of the peace by the 24 Geo. 2. a. 44.
We think that Mr. Alcook is not exempt from liability to be sued at law for illegal acts which he may commit in the exercise of his consular judicial authority, as being the judge of a supreme court. We think that jurisdiction is sufficiently conferred on the Supreme Court at Hong Kong to try British subjects for crimes committed in Japan by the 27th article of the Order in Council of the 23rd January 1860, and that it - would not be expedient at present to endeavour to obtain an alteration of the law as suggested by Mr. Small in his letter of the 8th May.
We have, &c. (Signed)
The Earl Russell,
&c. &c. &c.
J. D. HARDING. WM. ATHERTON. ROUNDELL PALMER