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below the low-water mark, but within three miles of the shore; and the House of Lords held that the Crown could not grant such a right except for some consideration of public benefit, because the property of the Crown in the fundus maris is subject to the public right of navigation. “ The right to anchor,” said Lord Westbury, " is a necessary part of the right of navigation, because it is essential for the full enjoyment of that right.” Lord Wensleydale's expressions are to the same effect : “ That in an arm of the sea, where the fundus maris is the property of the Crown, every subject of the Crown has a right to navigate and to cast anchor when and where he thinks fit, as a necessary means of safe navigation.”
G. STEGMANN GIBB.
(To be continued.)
VII._SELECT FOREIGN CASES.
Advocate; Privilege; Professional Secret. ITALY.— A dvocates and Procurators may decline to give evidence on matters confided by client, and such refusal being devoid of legal effect on case, Judge may not take it into consideration in sentence. Court of Cassation, Palermo, 23rd Nov., 1874. Solli and Floritta, appellants.
This was an appeal to have judgment reversed, on three grounds common to the two appellants, and one special to Floritta, viz.
ist. Alleged violation of Art. 323, n. 3648, n. I, Code of Penal Procedure, constituting jabsence of grounds for judgment owing to refusal to consider declaration of witness Scherma, an advocate.
2nd. Alleged violation of Art. 688, Cod. cit., in subsequently taking said declaration into consideration, and even making it principal ground of judgment.
3rd. Alleged violation of Art. 323, n. 3, and Art. 640, n. 1, Cod. cit., constituting absence of grounds for judgment owing to refusal to hear witness Scherma a second time.
4th [special to Floritta.] Alleged violation of Art. 628, and Arts. 102, 103, Cod. cit., modified by decree of Royal Lieutenant, 17th Feb., 1861, imputing absence of grounds as to guilt of Floritta, and raising question of the constituent elements of swindling (truffa), of which he was accused.
The Advocate Scherma had been summoned as a witness for the Crown [Pubblico Ministero], and, after taking the oath, declared in answer to the interrogation of the President of the Correctional Tribunal, that he had been called upon by Solli and another to draw up an agreement; and that his knowledge of the case having been obtained in the exercise of his profession as an advocate, he declined to answer the questions put to him. The Inferior Court, and the parties to the case, both accepted this refusal, but the Court took it into consideration in giving judgment.
On appeal, the Court of Cassation considered the texts of Roman Law, and Articles of Code of Penal Procedure, and Code of Two Sicilies, bearing on points involved ; referred to Digest, [lib. 22, tit. 5] 1. 25, De Testibus, “ Mandatis cavetur, ut præsides attendant ne patroni in causa cui patrocinium præstiterunt, testimonium dicant;" also to similar dispositions in Codice Estense, Art. 137, s. I, and Codice Sardo, Art. 274, establishing the general principle, and Held that the evidence given under examination is the only ground for judgment; that the witness Scherma was protected in his refusal by the professional secret, and, accordingly, Reversed Judgment of Lower Court.—(Circolo Giuridico, Palermo, Decisioni Penali, 1874-5, Pte. iii., pp. 34:37).
Extradition. Mexico.-Culpability (Culpabilité] not established. Refusal to Extradite. District Court of Tamaulipas North, Mexico, reversing decision of Judge of First Instance at Matamoros, 3rd Sept., 1875.
George Harras, alias Lennep, American citizen, of German origin, escaped from prison of Brownsville, Texas, and took refuge in Northern Mexico. On 31st August, 1875, the Judge of First Instance at Matamoros received demand for his Extradition from the Judge at Brownsville, Harras having been imprisoned there on a criminal charge still pending, and being at time of demand in prison at Matamoros, for infraction of police regulations there. The identity of Harras was proved. The Judge of Matamoros declined to extradite on account of insufficiency of documents, but asked the police to keep Harras in confinement until final decision on extradition. The Judge of Brownsville sent a second demand, accompanied by the original documents relating to the charges against Harras. The Judge of Matamoros, on 3rd Sept., 1875, gave orders for Extradition, on the ground that although no proof of culpability of the accused had been given, a writ had been issued for arrest of Harras; and, therefore, sufficient grounds for proceeding against him might be assumed, and the crime specified (assault with armed violence, attaque à main armée) was within the cases enumerated in Art. 3 of Extradition Treaty of 23rd May, 1862, with U.S.A.
The District Judge of Tamaulipas, relying on ist Art. of said Treaty, viz., “ Extradition shall only take place when the fact of the perpetration of the crime shall be so proved, that the accused would have been lawfully arrested and tried in accordance with the law of the land of asylum, if the crime had been committed there ;” and on Arts. 14, 15, and 16 of Mexican Constitution of 1857, Held that the documents produced contained no proof of culpability, reversed the decision of Judge of First Instance at Matamoros, and declared that the Mexican Federation accorded protection and “amparo " (asylum) to Harras alias Lennep. (“ El Toro," Mexico, 1875.)
(1.) France.—Rights of Domiciled Foreigner. Tribunal of Commerce, Marseilles, 17th March, 1875. Montanaro v. C.ie Italo-Flatense.
The long establishment of a foreigner in France gives him the right to exercise in commercial affairs the judicial powers belonging to a Frenchman, and, consequently, to sue a foreigner before the commercial jurisdiction of his domicile.
(2.) Application of Civil Code. Civil Tribunal of Marseilles, 2nd Chamber, 16th March, 1875. Viè v. C.ie Segovia Cuadra. - Art. 14 of Civil Code, which permits a Frenchman to sue a foreigner before a French Court, applies to obligations resulting from delicts and quasi-delicts, as well as to obligations arising from contracts.
(3.) Convention of 1862. Tribunal of Commerce of the Seine, 7th November, 1874, confirmed by First Chamber of do. in Paris, 19th March, 1875. London, Chatham, and Dover Rail. Co. v. South-Eastern Rail. Co.
French Courts may declare themselves incompetent to try a case brought before them arising out of a contract entered into in France, but which is really a reclamation between two foreign railway companies in respect of passenger's luggage carried by train to a foreign country. The International Convention of 17th May, 1862, between France and Great Britain, permitting companies of those countries to exercise respectively their rights, “ only gave the foreign companies a right to sue in France, and did not modify the general rules of competence.” “In a suit between foreigners the competence of French Courts is permissive (facultative).” “ There is just ground for French Courts to declare themselves incompetent when the question is concerning an act done on foreign soil, and which might give rise to the application of the provisions of English Law.” ("Dictionnaire de la Jurisprudence Française,” in Journ. de Droit Int. Pr., 1876, p. 179, et seq.)
(4.) EGYPT.—Court of First Instance, Cairo, 10th April, 1876. The New Courts not competent to take cognizance of suit by Ottoman subject against Egyptian Government. Ottoman subject cannot acquire foreign nationality without previous consent of his Government.
Osman Rhaleb Bey (son, and one of the heirs of Kourschid Pasha Parmokus, Generalissimo of the Egyptian Army,) a naturalised Prussian subject, dwelling at Cairo, v. The Egyptian Government, per Governor of Cairo. Competency of Court was challenged by defendant, on plea that plaintiff was an Egyptian subject, and must, therefore, go to Local Courts. Plaintiff put in Letters of Naturalisation granted to him at Berlin, gth August, 1867, as well as various Letters of Protection (Patentes de Protection) from Prussian Consulate. Court acknowledged, on the evidence, that the Prussian authorities had recognised plaintiff as a Prussian subject, but considering, that the question to be decided was whether the State to which plaintiff belonged should recognise him as a Prussian subject on his return to Egypt; that the right to recognition or non-recognition of foreign naturalisation flows from the principle of national sovereignty; that, according to Mussulman Law, an Ottoman subject cannot, without previous consent of his Government, throw off his nationality, and assume another; which principle was confirmed for all subjects of the Sublime Porte, whether Mussulmans or not, by Firman of 19th January, 1869, and is also adopted by various European States, le.g. Austria, Prussia, Wurtemberg, Bavaria), and was recognised in regard to plaintiff by the Prussian Consul himself, who considered plaintiff to have a double nationality, Held wat iniernational Court was not competent, and condemned plaintiff in costs. (Journ. de Droit Int. Pr., 1876, p. 192.)