unless indeed they have not been appointed by him but by his sovereign or state, but who cannot waive his own privilege, because it concerns the dignity of his government and the convenient transaction of its affairs.

The privilege applied to secretaries and attachés: Hopkins v. De Robeck (1789), 3 T. R. 79, Kenyon, Ashhurst and Grose; Parkinson v. Potter (1885), 16 Q. B. D. 152, Mathew and Wills.

Where an ambassador, minister, or member of an embassy or legation is a subject of the country to which the mission is accredited, he enjoys the privilege of exterritoriality so far as the government receiving the mission has not expressly excluded it in its reception of the person in question.

Macartney v. Garbutt (1890), 24 Q. B. D. 368, Mathew.

A British subject who has obtained an appointment as member of a legation for the sake of protection against his creditors, and whose appointment has not been recognized by the British Government, will enjoy no protection: Re Cloete, Ex parte Cloete, [1891] 65 L. T. 102, Esher, Lopes and Kay.

§ 195. Consuls and their family and servants are not entitled to the benefit of § 194. But it must be remembered that in Eastern countries consuls have a diplomatic character.

Barbuit's Case (1737), Forrester's Cases temp. Talbot, 281, Talbot. See also Vivash v. Becker (1814), 3 M. & S. 284, Ellenborough and (?), where to the question whether a consul is entitled to diplomatic immunities there was added the question whether, if so, such immunities extend to subjects of the state in which they are appointed to act.

As to the jurisdiction of consular courts see Imperial Japanese Government v. P. & 0. Navigation Co., [1895] A. C. 644, where it was held that the British Consular Court in Japan had no jurisdiction in a counterclaim brought by a British defendant against a Japanese plaintiff, the cognizance of such causes belonging to the Japanese courts.

CHAPTER XI.

TORTS.

WHEN damages are claimed in respect of what is alleged to be a tortious act or omission, the selection of a law by which to decide is free from all question about the voluntary submission of the parties to the law of any country, such as arises in cases of contract, because there has been no dealing in which the parties have concurred. Another contention may be made, suggested by or imitated from what takes place in contract, namely, that the defendant has voluntarily submitted himself to the law of the country in which he has acted or omitted to act, either by the very act or omission, or if he does not belong to that country by having entered it. But such reasoning would prove too much, for it would equally cut all the knots of private international law by referring every question to the special laws of the country where the fact which gave rise to it occurred. The truth is that by entering a country or acting in it you submit yourself to its special laws only so far as legal science selects them as the rule of decision in each case. Or more truly still, you give to its special laws the opportunity of working on you to that extent. The operation of the law depends on the conditions, and where the conditions exist the law operates as well on its born subjects as on those who have brought themselves under it. The international law of torts may therefore best be considered independently of the ideas suggested by contract, and previously to that part of the subject.

Starting from the fact that according to the general notions on jurisdiction the forum delicti and the forum rei are equally competent in cases of tort, we have to inquire which of them is the primary jurisdiction; not in the historical sense, in which we have seen on p. 230 that the forum rei is the older, but in the sense of being the more appropriate, and therefore of not being obliged to take any law but its own into consideration. (See p. 226.) The forum delicti appears to be entitled to that rank, because the injured person may fairly desire the quickest and easiest redress without having to follow the wrongdoer to

his own country; also because one of the main objects of law is to maintain the peace within a given territory, and therefore to afford judicial redress for such conduct as in the absence of it would tend to provoke a breach of the peace. But if the plaintiff choose the forum rei, can he claim that the decision there shall be the same as it would have been in the forum delicti? It will probably be found that to secure certainty is the leading motive for following in other jurisdictions the law which would have been applied in the primary one; but this means certainty in the mutual dealings of men, and the motive has little application to the case of a tort where necessarily there has been no such dealing. A law which gives damages for a wrong must proceed on grounds of justice or public expediency, and if the personal law of the defendant refuses damages which the ler loci delicti commissi would give, the former, in adopting the latter, would receive a shock that may well be thought to outweigh in importance the disappointment which a refusal would cause to the plaintiff, even supposing that he has not had an opportunity of suing the defendant with effect where the act complained of was done. On the other hand, if the personal law of the defendant would give damages for what the lex loci delicti commissi regards as a justifiable act, the defendant may plead that if his act disturbed the social order of any country it was that of the country where it was committed, the law of which therefore is the best authority on the subject.

This reasoning tends to the conclusion, which we shall see has been adopted in England, that the lex fori and lex loci delicti commissi must concur in order that an act or an omission may be deemed tortious. On the continent there is no general agreement. Savigny maintains the exclusive authority of the lex fori, "both positively and negatively, that is, for and against the application of a law which recognizes an obligation arising out of a delict." His reason is that all laws relating to delicts have such a close connection with public order as to be entitled to the benefit of what I have called the reservation in favour of a stringent domestic policy: above, p. 51. M. Charles Brocher, on the contrary, maintains the authority of the lex loci delicti commissi in terms which would appear to be exclusive, were it not that he goes on to claim for the judge

*Syst. 374, Guthrie 254.

the right of taking considerations of public order into account; and the result at which he would practically arrive would probably not be very different from that which prevails in England.

*

§ 196. No act can be treated in England as a wrong on the part of any defendant in whom it is not a wrong by the law of the country where it was done, whether that law did not regard him as a wrongdoer at the time, or whether he has since been enabled to justify it in that country by the enactment of an indemnity.

For civil purposes the second case put in the §, which carries the first with it a fortiori, was decided in an action for damages against a late governor of Jamaica, whose proceedings in time of insurrection had been covered by a colonial act of indemnity: Phillips v. Eyre (1869), L. R. 4 Q. B. 225, Cockburn, Lush, Hayes; affirmed (1870), L. R. 6 Q. B. 1, Kelly, Martin, Channell, Pigott, Cleasby, Willes, Brett. Cockburn, delivering the judgment of the court below, said: "It appears to us clear that where by the law of another country an act complained of is lawful, such act, though it would have been wrongful by our law if committed here, cannot be made the ground of an action in an English court": u. s., p. 239. And Willes, delivering the judgment of the Appeal Court, said: The act must not have been justifiable by the law of the place where it was done": u.s., p. 29. In Hart v. von Gumpach (1873), L. R. 4 P. C. 439, Montague Smith, an action for damages incurred by an alleged libel in China, which failed because there was a sufficient defence by English law, the question was noticed and reserved, whether proof that the communication was privileged by the law of China would have been a sufficient defence (pp. 464, 5), We must conclude that it would have been so. In The M. Moxham (1876), 1 P. D. 107, James, Mellish, Baggallay; reversing Phillimore (1875), ib. 43; a British ship by negligent sailing damaged a pier on the coast of Spain, and it was said that by Spanish law the master and mariners were liable but not the ship or her owners. It was held that if that were so the latter would not be liable in England. "Whatever is a justification in the place where the thing is done ought to be a justification where the cause is tried," had already been said incidentally by Lord Mansfield in Mostyn v. Fabrigas (1775), Cowp. 175. "In their lordships' opinion the general principle of criminal jurisprudence is that the quality of the act done depends on the law of the place where it is done": Mellish, delivering the judgment of the Privy Council in Att.-Gen. of Hong Kong v. Kwok-a-Sing (1873), L. R. 5 P. C. 199. That damages cannot be recovered in the locus delicti commissi is immaterial if the act was wrongful there: Machado v. Fontes, [1897] 2 Q. B. 231, Lopes and Rigby. Where a man, domiciled in Quebec, while travelling on a railway in Ontario, was killed by the negligence of the railway company's servants, and his widow sued the company in Quebec for damages under the Civil Code of Quebec, it was held that, as there was neither civil nor criminal liability in the company according to the law of Ontario, the locus delicti, no action could be maintained in Quebec : Canadian Pacific Railway Co. v. Parent, P. C., [1917] A. C. 195, Haldane, Dunedin, Parker, Parmoor, Wrenbury.

*Nouveau Traité de Droit International Privé, p. 315.

A justification of an act under the sovereign authority of the place where it was committed is equivalent to its justification by the law of that country: Dobree v. Napier (1836), 2 Bing. N. C. 781, Tindal and (?); Regina v. Lesley (1860), Bell C. C. 220, Erle, Wightman, Williams, Watson, Hill; Carr v. Fracis Times & Co., [1902] A. C. 176, Halsbury, Macnaghten, Shand, Brampton, Lindley, reversing A. L. Smith, Vaughan Williams and Romer, who had reversed Grantham.

§ 197. Neither can any act be treated as wrong in England which is not such in the defendant by the principles of English law, notwithstanding that the defendant is liable by the law of the country where the act was done. But the English court admits the proof of foreign law . as one of the facts upon which the existence of the tort, or the right to damages, may depend "—" as in the case of a collision on an ordinary road in a foreign country, where the rule of the road in force at the place of collision may be a necessary ingredient in the determination of the question by whose fault or negligence the alleged tort was committed "—" and it then applies and enforces its own law so far as it is applicable to the case thus established."

66

The passages which in the § are placed between inverted commas are taken from the judgment of the court in The Halley (1868), L. R. 2 P. C. 193, Selwyn (pp. 203, 4). It was there held that the compulsory employment of a pilot was a sufficient answer on the part of the shipowner to a claim for damages occasioned by a collision which, through the pilot's fault, took place in the territorial waters of a country by the law of which compulsory pilotage furnishes no such defence: reversing Phillimore (1867), L. R. 2 A. & E. 3. But this does not apply where the captain is compelled to take a pilot, but not to give up the navigation of the ship to him : The Guy Mannering (1882), 7 P. D. 132, Coleridge and Cotton, affirming Phillimore, 7 P. D. 52; The Agnes Otto (1887), 12 P. D. 56, Butt; The Prins Hendrik, [1899] P. 177, Gorell Barnes.*

See Batthyany v. Walford (1886), 33 Ch. D. 624, North-quoted above under § 176-in which it was treated as an element of the decision that the liability of the successor for waste was sanctioned in principle by the English law in analogous cases.

§ 198. But the last § must be understood without prejudice to this, that an act may be treated as a wrong in England which is not such in the defendant by English law otherwise than as adopting some rule of public international law.

In The Nostra Signora de los Dolores (1813), Dodson 290, Scott, a part owner of a privateer was held liable for her acts, although by English law in the narrower sense he would not have been so liable because his name did not appear in her register.

*The law in England has been changed on this matter by the Pilotage Act, 1913, but the principle remains the same.