Ave
2
In the event of the consul's perseverance in insisting upon this claim, you had probably better intimate to him, that until he has taken the ordinary legal steps to obtain the decision of the competent court, all further correspondence must be useless; that if he will not formally and legally make and support his claim, it cannot be considered as rejected; that the question is one of law, and not merely one of executive administration; and that until a competent court has fully heard and decided upon the claim suggested by the consul, it is impossible to know whether it legally exists or not. You may perhaps also suggest, that you are not aware that the Portuguese subjects suffer any serious hardship or practical inconvenience from the prevailing system, nor that they would derive any substantial advantage from the alteration now suggested. You may add, that if the consul were to establish his claim, he would be, as temporary administrator, subject and accountable to the colonial courts, and possibly exposed to much legal responsibility and annoyance; and, finally, you may observe, that the circular does not instruct the consul to advance the claim in question, and does not seem to apply specially to the colony, or extend to Tegally and actually in the possession and any cases but those in which the consul
exercise of the right suggested.
These topics, however, I merely suggest, in the event of your finding yourself, as I repeat, however, that you it were, forced into a correspondence with the consul. should as far as practicable decline all discussion with him upon the matter, leaving him to make such representations on the subject as he may think fit to his own Government.
Governor Wodehouse,
&c. &c.
(Copy.)
&c.
No. 3.
I have, &c. (Signed)
NEWCASTLE.
PROPOSED NOTE from Lord JOHN RUSSELL to Count PERSIGNY.
M. L'AMBASSADEUR,
Foreign Office, June 1840. HER Majesty's Government have had under their consideration the question which had arisen at the Mauritius as to the liability of the French consul at that island to be summoned to appear before the law courts, and to produce the archives of his consulate, for the purpose of forwarding the ends of justice, which formed the subject of your Excellency's note of the 1st of August, and of Baron Malaret's note of the 23d of September of last year. And I have to acquaint your Excellency that the matter appears to Her Majesty's Government to be one in which they have no power whatever to interfere.
The French consul has no personal exemption from attendance in a court of justice in obedience to a subpœna. He should have attended, and stated his objection to produce his consular registers, and it would have been for the court to decide upon the validity of such objection.
It is impossible for Her Majesty's Government to interfere with its courts of justice, or the rules of procedure therein.
There is no rule of international law which entitles consuls to any diplomatic privileges, or any legal exemption from ordinary judicial process. They enjoy no such privileges by English law, and Her Majesty's Government have never insisted upon British consuls being entitled to such privileges or exemptions in France.
It is not of course practicable to lay down beforehand any positive rules as to the questions which a consul, when examined as a witness, may or may not be compelled to answer, or as to the documents which he may or may not be compelled to produce.
Either he or one of the parties must formally object to such production, stating the grounds for such objections, and the court must decide upon the validity thereof.
I have to add, however, that I understand that it is the intention of the judges of the Supreme Court at Mauritius to pass a rule of court, with a view of preventing the recurrence of questions similar to the one raised in the present instance by the French consul in that island.
(Copy.)
(No. 83.) SIR,
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No. 4.
Sir G. LEWIS to Governor Sir E. HEAD.
372
Downing Street, July 12, 1860. I HAVE to acknowledge your despatch No. 27, of the 29th March, enclosing for the consideration of Her Majesty's Government a note verbale" placed in the hands of the Provincial Secretary by the French consul at Quebec.
It is in the opinion of Her Majesty's Government most unadvisable that the Canadian government should enter into any correspondence on this subject with the French consul, who should be informed that any representations which foreign consuls may have to make to British authorities on matters of this kind must be addressed through their respective governments to Her Majesty's Government. The very irregular course taken by M. Gauldrée Boilleau appears, on inquiry, to have been taken without the sanction or even knowledge of his own government.
That government, however, in disclaiming M. Boilleau's act, expressed their opinion that a French consul should be deemed entitled in British dominions to the following privileges
-
(1.) Personal immunity, except in case of his committing any crime.
(2.) Exemption from all national and municipal burdens or taxes, either direct or indirect.
(3.) Exemption from all personal service in the militia or otherwise, as well as from having soldiers billeted on him.
(4.) Permission to place over the door of his house the Imperial Arms, and to hoist the French flag.
Her Majesty's Government have replied, that they cannot grant to foreign consuls in the Queen's dominions any of the first three exemptions or immunities mentioned above, but that as no formal permission is required to enable a consul to display the arms or flag of his nation, every consul is at liberty to do as he pleases in this respect.
Governor Sir E. Head, Bart.,
&c.
(Copy.)
(No. 240.)
&c.
&c.
No. 5.
I have, &c. (Signed) G. C. LEWIS,
Sir G. Lewis to Governor STEVENSON.
SIR,
Downing Street, July 30, 1860. I HAVE to acknowledge your despatch No. 36, of the 29th of February last, requesting the instructions of Her Majesty's Government respecting the extent to which criminal jurisdiction may be exercised in Mauritius by foreign consuls.
The question has been referred to the law officers of the Crown, with whose advice I have to give you the following directions:
Foreign consuls have no legal power or right whatsoever to order or to authorize the arrest, detention, imprisonment, or punishment of any person whatsoever in any British prison or place of confinement, or to require or receive the assistance of the British authorities in carrying out within British jurisdiction any sentence or order, whether criminal or civil, which they may pronounce or issue, excepting in the case of desertion, and then only when, in accordance with the "Foreign Deserters Act, 1852," 15th and 16th Victoria, Cap. 26., Her Majesty has issued an Order in Council relating to the particular government in question, and when the consul of such government may regu- larly apply to the competent magistrate, under the provisions of that statute and the Order in Council issued in accordance therewith.
With this exception, British officers have no authority to carry into effect the orders or sentences of foreign consuls, by arresting or confining in British custody any persons against whom those consuls may have assumed to pass criminal or quasi criminal sen- tences; and all consuls, gaolers, and others concerned in proceedings of this nature will, in the opinion of the law officers of the Crown, incur a severe criminal and civil respon- sibility in any court of this country, and probably in any colonial court before which civil or criminal proceedings may be instituted by any party aggrieved.
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