HARDING V. LIARDET.

Samoa Times and South Sea Gazette, Issue 13, 29 December 1877, Page 3

HARDING V. LIARDET.

Tin: following is the judgment in the above case, delivered by Judge I lorrio, in the Supreme Court of Fiji, on October 30th, and which we reprint from the " Fiji Times " : In this case the plaintiff, Harding, claims damages to the amount of £2OOO from Mr. E. Albert Liardot, her Majesty's Consul, at Samoa; for that he did with force and anus make an assault upon him at Samoa, an island of the South (seas, and heat, wounded, and ill-treated him, and imprisoned him on board a vessel called the Canterbury, without reasonable or probable cause, for thirty-four hours, and for a further imprisonment of six hours on shoiv. The defence was, first, that the Court had no jurisdiction, ■and second, that the defendant was not guilty of the wrong with which he was charged. As to the question of jurisdiction, the defendant admitted that there could be no doubt of the jurisdiction if it were a matter of contract which was being enquired into, but he contended that this Court could not enquire into, or grant damages, in consequence of a tort committed in Samoa, and that at all events as to the acts of a Consul lie was only liable to answer in the Courts of England. But it seems to mc that the jurisdiction of Courts of justice is not limited to enquiries into contracts which may have been entered into abroad, but that they may competently enquire into the civil remedies for alleged torts. In this case, for example, we are not asked to vindicate the laws of Samoa as regards assaults and batteries, but one of her Majesty's subjects conies to this Court and complains that the defendant, another British subject, who is at present within this colony, did him a wrong in Samoa for which he seeks reparation. Is the mere fact that the wrong was done in Samoa a good reason for the Court shutting its ears to the complaint, and denying justice to the plaintiff even if he could establish his case I There are some actions which in their nature are local and could not be tried lieyond the country where the cause of action arose. but there arc others which arc equally in their nature transitory, and may be tried elsewhere. They do not frequently o--cnr, he-iiise the plaintili'may not always find the defendant within tic- same jurisdiction as himself, and if he did, the ditliculties of proving what happened in a foreign country are necessarily great. in England, formerly, when fictions were -<> favorite a method with lawyers of overcoming difficulties, the venue. In such cases was laid within the body of an English euumy, but that is no longer rc•quin d, and we have no such difficulty in our mode of procedure. The resort to li.-rinns in Kt.glaud wive not unknown • \eii.-:i .11 earlv period. If actions upon contracts entered into abroad can be tried elsewhere, which is admitted by the defendant, it almost 7irrcssarily follows that actions for damages arising from torts can he so tried. A contract is an oh ligation, and win re one person undertakes to do, or pay, something to another, the agreement is binding between the two persons, not on account of the locality where the obligation was contracted, but of the mutual undertaking by the parties to the bargain. The law of obligations is not peculiar to one country but is common to all, and the enforcement of contracts is part of that universal law which all nations recognise. But the claim of damages which arises from a delict or tort, has, if traced back to its underlying principle, the same legal basis as an obligation. There is no written contract between men that each shall give to the other his due, and respec! his person and his liberty, but there is an implied obligation to that effect, and the civil claim of damages for a tort arises from the breach of that implied obligation. The civil results of delicts form part of the general law of obligations in the Roman law and the laws derived from it, and in England such actions are personal actions in the same general category as actions arising on contracts. There is therefore no reason in the nature of the claims themselves why they should be treated differently from those arising from contracts as regards the place where the damages may be recovered, but every reason to place them on the same footing. There is one limitation, however, which must not be lost sight of in regard to torts committed abroad. If they are committed in a British colony where English law prevails, or in England itself, the principles of the law being the same, that which is a tort in the colony will lie a tort in England, and vice versa, so that there can be no inconvenience, and no injustice in trying the case either in the colonial Courts of In the English Courts according as the litigants are within the jurisdiction of the one or the other. But it may happen that what is a tort by English law is not so by "lex loci." and raises the very important question whether British subjects temporarily resident in n foreign country are to be so entirely governed by the "lex loci" that they cannot i over damages from each other for what arc clearly torts by their own law, although they might Uot carry damages in the country of their I jouru, That question again subdivides

itself into what is to be the rule with : to Civilized coinmunitie-. and with regent to such islands as those by which wo are surrounded where no regular system of law prevails, and where the "lex loei commissi delicti " ! might be nothing but the customary habits of barbarians. Now, as to the first of these questions. I take it that the I law as to civilized communities is tliat British subjects can recover damages for torts committed in foreign countries, but that if the act was authorised by the law of the country, it cannot be the foundation of an action in a British Cunt. That was laid down in Regilia v. Lesley 2'.i Law .1. M.t'.i !»7 in regard to certain persons brought from Valparaiso to England in an English ship by order of the Chilian Government The acts of the master were held to be justifiable for what he did in Chilian waters at the request, or by order, of the Chilian Government, but not beyond. The case was Commented on and accepted as the law on the subject in Phillip's v. Eyre 4 Law Reports Q. B. p. 240. With regard to savage communities, or islands which have been christianized but not yet moulded into a law abiding state, acts done by one British subject to another which are torts by their own law, will all the more be a good foundation for legal proceed lings before a British Court of justice; as, if not enquired into there, they can scarcely be enquired into anywhere else. There is no question in this case as to any sanction of the Government or (Jhiefs of Samoa to the ', act of the defendant. That is not . alleged, and the only allegation that is made to take it out of the ordinary class . of eases is that he is the British Consul, and that bis proceedings were in fulfilment of his duties as such. Suc-h a plea . can be best judged of in a British Court, where the law as to assaults and false imprisonments is well known, and where the privileges of Consuls under the law can he enquired into and decided. But it is contended by defendant that, being ('oiisul, he can only be sued in England. No authority was brought forward to support the proposition, and 1 think it untenable. By admitting such an exemption of the defendant from the < jurisdiction of this Court. I would i practically be denying Justin- to the . plaintiff; that justice, namely, which i consists in having his suit heard and : determined, 'whether in his favor or against him. The plaintiff in all prob- ■ ability may never he in England, and if i he were the defendant might not he then- to meet him before the Courts. But fortunately British subjects do not t require to be within the realm of \ • England to obtain justice. The i'ueen 11 has'cstablished Courts with ample juris- t diction throughout the wide bounds of i the Empire, so that those who may never tread the precincts of Westminster Hull may vet enjoy all the benefit of those I principles of justice whirl, have founded and which sustain the fabric of the common-wealth. In the old law certain provisions were made for the security of I'Prsons in tee serv • ; the <'' .\n | such as Ambassadors, commanded of

timest'liesc privileges'have 1 n looked , upon with "leaf jealousy, ami it has I been li.-ltl hv the I'Vivy Council in Hill I v. l!i ;"c .", Moore p. +'li.">) differing froni I the doctrine whir], Lord Mansiield t seemed tn lay down in Kubr'igas v. 1 Mostyn, which, however, was in a late i case adopted tliat a'Coveruor even may I l.e surd ill the Courts of his own 1 government, although probably noexecu- i tion wouhl be allowed to issue which t mi.rl.t impair tin! ft-. < 'it. ca:-.-, ing out of his commission. Consuls are not such i il class of officers as to cone' within the I category of the high officials 1 have t named. If exceptions were to be made 1 in their favor where would they end '. I > recollect that in the colony that 1 have : just left, the Supreme Court was one 1 day asked to sanction the proposition i (which had been listened to by one of . tne District Magistrates) that a person : was not subject to .arrest for debt because he was clerk of the French Consul ! '. This Court, and all Courts, will recognise , the commission of the defendant, and will aid him in executing that com- i mission when they can do so with due ; regard to the interests of others, and i thus it is that to enable him to return to i the sphere of hi* duties I have given j these causes a preference, but I cannot i admit that he is above and beyond the ] jurisdiction of this Court because of i his Consul's commission, and 1 will i therefore proceed to enquire into the i merits of the cause. It appears from the ; evidence that previous to the month of i September of this year, a firm styled 0. ; .). Smith, and Co. carried on business in Samoa. The resident managing partner was Mr. Stewart, an American, but the non-resident partners, Messrs. Cooper, and Clay, and certain creditors, sent to Samoa Mr. Woods, formerly of Fiji, with powers of attorney to superintend the business on their behalf. Stewart resented to the interference and Woods applied to the defendant, the British Consul, U> assist him in his efforts, After a visit to Fiji, Woods returned in August armed with additional powers; umi Stewart, who had left Samoa about , the sune time as Woods, sent, it appears, ! by the same ship a gentleman colled j limit with powers to represent Mm—at j least Hunt so represented to the Consul. On his arrival Woods again applied to the defendant to nut him in possession df the store of a; J, Smith, and Co., but tho Consul having I ti Informed by Hunt that he also claimed possession most properly refused to be harried into any prehmtttro action until he had seen ; the papers an I considered the position of I all parti.-, w I had omploj-i Ith

plaintiff Harding as his messenger t.i the i defendant Harding had either been in ' the employment of u, .1. Smith, and Go, and been disuiiased by Stewart, or had never been recognised by Stefwart in | consequence of having come along with Woods. To Harding the defendant stated on tin' morning of Saturday, the 1-t September, that lie would give his decision in tin- matter on Monday, the 3rd of September. Woods then applied to the American Consul professedly in the interest of an American creditor—tin- S;ui Francisco Cracker Company and having paid him £ls of fees, the American Consul at once proceeded to the store of U. J. Smith, and Co, and demanded payment of the debt to the amount of 82000. The employes mil being able to meet this demand, the American Consul siczed the store and placed the plaintiff Hanling, and a Mr. P. C. .Martin (who has also a suit in this court against the defendant) in possession as his deputy marshals. I'p to this point there seems to have lieen no cause whatever for the complaints of dilatoriness made by Woods in the course of his evidence against the defendant. The affairs of G. J. Smith, and Co. were in a complicated statu from the quarrels of the partners and the intervention of the different sets of creditors,, and the Consul was right in taking Ids own time tot siderhow he should best use his influence and authority. Unfortunately, however, the defendant proceeded to act in the course of Saturday, the Ist of September, in a matter which arose out of the seizure of the store by the American Consul. \ Mr. Coubrough, an employee of the firm, and a British subject, complained to tho defendant that he had been assaulted by .Martin, and the defendant, having, as he said, already made up his mind to deport .Martin, because of an assault upon Stewart, made out a warrant for Martin's arrest, and with a singular want of prudence, entrusted the execution of it to Mair, the supercargo of the ship Canterbury, of which Hunt, the competing claimant for the store, was the owner, and certain special constables, of whom Hunt was one, and there was also one or two of the crew of the Canterbury. The defendant's explanation of his choice of such an instrument was that there was no prison or place of confinement to which lie could convey Martin, and that Hunt had offered the use of his ship for that purpose. The defendant swears that he did not know when he granted the warrant where Martin was. and that he was not aware the doors of the store had been sealed with the Consular seal of the United States. Certain it is that he granted the warrant and placed it in the hands of Mair to be executed with the help of the six or seven special constables whom he had also sworn in for the purpose. The defendant could not tell .is the exact time when this warrant was delivered hut in all probability it was at an advanced hour of the' Saturday evening. The plaintiffaml Martin swear that about, midnight on Saturday they were awoke, while in possession of the

store, bv loud cries am] knocking at the ; doors. 'They wore ordered to open in the ! Queen's name, and mi their refusal, ! because »f the doors bring sealed with the seals of the United States Consul, the doors were forced open and Mairand his party entered. They proceeded with threats "of violence, according to the testimony of Hardin- and Martin, to handcuff these persons, and then or afterwards a Mr. Hethcrington, and took tlioin on board the Canterbury. The plaintifl'— Harding—on remonstrating against this treatment- was told by •:he master :.f lli . < an;: rl jr. i'V\ :lsnn tliat it was done l>v authority of the British Consul ; but this so far us the evidence shows could only refer to the arrest of Martin. The plaintifl \va.s kept handcuffed on board the vessel until Sunday about .'! p.m., wlen having sent a message to the defendant demanding his release, Mr. Liardet went, on board and informed the plaintiff that he had not given anv authority for his arrest, but that from what he'had since beard from people on shore, who consi Civ I tilt ir hv:■.-, in dan,' r if he Wire released, and also from' what lit', the Consul, believed to be the excitement on | shore against the plaintiff, he, both to prevent the plaintiff doing harm to others and others doing harm to the plaintiff, maintained his arrest on board the Canterbury. The plaintifl' asked that at least the handcuffs might bo removed, but the defendant' refused to permit this. At the Request of the master of the Canterbury the defendant gave him a written order to detain the plaintiff as a prisoner, without indeed stating anything as to the handcuffs, but leaving the prisoner on board handcuffed and refusing to give any orders for their removal, 'i'he plaintiff ho remained until Monday morning about II) o'clock, when ho was taken on shore to the British ('onstilate and his handcuffs removed. After Hethcrington's case had been Inquired into be was informed that there was nothing against him that ho was free to depart. It is upon these faets that the plaintiff founds his claim for damages against the defendant, contending that the arrest wits by his authority front the fhsit, that it was done by a person who had no powers to order such an arrest, and that it was without, just or probable cause, There is no allegation of malice against the defendant. 1 take it its proved that the defendant gave no warrant and uo orders for the original arrest of the plaintiff. Readmits. that he was informed of the arrest about ' S o'clock on Sunday morning,' when I Woods, accompanied or followed by a

thi I' >n-ulate to in] ndanl t' i what hud occurred. Hi-, reply, eonsidei- . ing the hour, was not an unreasonable i one that he would inquire intu the i affair in the morning. In the morning i he proceeded to Smith's store U> ascertain , the even! . of the Illglit, and on hi ■ return bavin; received the plaintiffs ij letter went immediately on board the • Canterbury. Had be then released the plaint itl it is clear that any claim for i damages would have had a very slender foundation, lint at that point the defendant took upon himself the respnn&i- ---■ bility of the plaintiffs further detention, i and practically, although the eider was 1 not so expressed in writing, his detention : in handcuffs. Now, had the defendant : under his Consul's commission any • authority at all to order such an arrest, 1 i for if he had no authority it would !»• of . less consequence to inquire whether he i bad probable cause ( This is a question by no means so easy to determine as the i plaintiff's counsel seemed to imagine, i The power and authority of ('onsuls vary : very much in different quarters of the ■ globe. They are not as a rule recognised . as judicial officers and yet in some ■ countriej they have magisterial and . judicial power. The Consul for example at Madagascar has the power to arrest ■ and commit prisoners for trial to the Supremo Court of Mauritius. He has also civil judicial power. This is conferred by an Order in Council, and the right to establish such a jurisdiction over British subjects must rest upon the concessions in a treaty with the Foreign Power. The defendant is unable to refer us to any Order in Council giving him like powers, but on the other , hand it is undoubted that the Consuls in such places as Samoa have been accustomed to exercise an authority wider than elsewhere. Probably the extent to which this was carried depended a good deal upon the personal ' character of the Consul himself, and the willingness of the resident British subjects that for the general good such authority should be exercised. Mr. Thurston, who wa.s well acquainted with the mode in which the Consular office had been executed in Fiji in firmer times, gave us the information that many pei-sons bad been arrested and deported from the Croup by the Consul, although he would not venture to go the length of saving that such powers came within the Consul's commission. The Consul's commission as v.e see from that put in by the defendant is simply by all lawful means to aid and protect merchants and other subjects of the Queen who may trade with, visit, or reside in the place to which the Consul is accredited. The primary idea is to prevent merchants being imposed upon and interfered with by the Foreign Power, but her Majesty has further ample p >wers under the Acts of Parliament :Ci and 30 Vict., c. 10. and :!N and :i!l Viet., c. 51, to confer much wider and more comprehensive [lowers over her subjects in the islands of the Pacific. The' Consul ind Iby the first of those Arts has power to seize a certain description of vessels and to bring them before a Vice-Admiralty Court By tin'

'-■'•..lid ..!' those Acts lei- Majesty iias | powers to create and constitute the office of High Ciinmissiouer, to make rogtila- ': tioiis for the government of liritish i subjects in the islands of the South Seas, I and t > in pose penalties, forfeitures or ! imprisoniii.-uts for breach of such regulations, and also to erect a Court, of Justice l'.j- British subjects in the islands of tie Pacific, and to make < fillers in Council for the government of such subjects. Sut no such High Commissioner has s yet been appointed, no such Court has :s yet been created, no such Order in t'mncil has been received, and the Consul > powers must, be judged of as they shnil. These have' nnt been shown by defendant, to bo magisterial or judicial, tie might have shown some strung necessity laid upon him to do as he had doijo, as a justification of his acts, but 1 doitlt if in this case he has Urn able to do to. He states that persons on shore vav. him to understand that they feared the ilaintiff would assault them if released. These I presume were the persons \ ho had originally offered violence d> the plaintiff, and whose opinions i> fears might well have been i disregard.' \ Then on the other hand ho considered fhe plaintiff to be in danger from the Htsons on shore. But if this were so p't'ly a precautionary arrest for the plaintil's own good it was not one which ouglt to have been accompanied with the iid. gnity of handcuffs. There was no datfer in releasing the plaintiff on the Mmday and 1 cannot Ixdieve there wal the slightest necessity in maititainijg the arrest on the Sunday. Two part of the defendant's conduct stand "lit;- going far hev.tnd the measure of his dtttj the power of his office, and the justificath i he lias attempted to prove. 'The first i, his employment of Mair tie servant u Hunt, the competitor with Woods b possession of the store, to , make the nest of Martin, and swearing i in Hunt a tl others of the crew of the i Canterbui to'assist them. The arrest II whs made \ so reckless a manner as to 11 involve th ilaintiff. The second is the • continuant j\of the plaintiffs arrest • laccompani'dl with the indignity of ■ handcuffing Mtn about .'1 o'clock p.m. of i Sunday niitiiMonday morning'. I must I therefore hoi! the defendant responsible I for this latU'Wt of the arrest, nnd I regard it aahavlng boon done beyond I the scope of Icfondant's authority'and .without retuniible or probable cause. i i No malice isdilli'ged and doubtless the i j defendant istitifled to the presumption .that he belied, however erroneously, that he was ttltig in the discharge of j his duty. Tb p...it!,,n of tho plaintiff

materially affect When arrested he v i performing tho not very dignified dun of bailiff for the United States C But on the other baud an improper! arrcsl of any British subject, accompanied by the most unnecessary and harsh use of handcuffs, for however brief a period, requires more than mere nominal damages. I believe that the justice of the case, however, will be fairly met by awarding a sum of ii'> in name of damages which will als.i carry cost of the cause, which, however, 1 will reserve the right to modify, if necessary, when the bill is taxed.