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Roman See, has partially obscured his real glory as a Legislator, on many points far in advance of his own and several following centuries. Under these circumstances, the study of the Genoese position in Lesser Armenia, as it was conceded by the last King of the older dynasty who seems to have had any heart for encouraging Western traders and settlers, becomes a study of no small interest, and one which throws some light, we venture to think, on the history and attributes of the Consular office. We find the Genoese “Baïle" (Ballivus), or “ Kountz" (Consul), in the latter part of the thirteenth century, sitting in the Consular Court, which the Armenian King had allowed by the Capitulations of 1201 and 1215, with his "boni viri "and “probi viri” around him, and his “bastonarius," or Usher of the Court, to keep order. And as it appears that the Venetians employed such officials in the Kingdom of Sis some time before the Genoese, we should probably be justified in carrying back the history of Consuls, in the more modern sense of the term, to the twelfth century.* Down to A.D. 1215, the Genoese Consul, at least, had jurisdiction over all cases arising among his countrymen, but in the Capitulation of that year, as we have mentioned, cases of robbery and murder were reserved for the King's High Court. In the Privilege of 1288, which we hesitate to call a Capitulation, because it is not certain that the Genoese Republic accepted it, there was a provision regarding the duties of the Consul very much akin to some of his later functions. It was therein enacted that the Consul (Kountz) should verify the nationality of the subjects of the Republic, and certify it to the King's officers. There can be no reasonable doubt, though we cannot bring forward proof “currente calamo," that the Venetian Consul, who
* Pierantoni quite takes this view, and instances the very early Capitulations of Amalfi, and the existence in Italy and Sicily of Consuls from the cities of Narbonne, Arles, Montpellier, &c. (Storia del Diritto Internazionale. Napoli. 1876.)
was earlier in the field, was charged with a similar function. This comes to something very like the Consular Passport, or Tezkereh, so much sought after in the Levant in modern days, and prevalent to a considerable extent on the Continent of Europe before the cheapening of the Foreign Office Passport.
The Privilege of 1288, from which we cite this statement of the Consul's duties, is interesting also on other grounds. It is the only one in which the Succession Law established as regards aliens dying in Armenia can be clearly traced. The doctrine here laid down was that the property of a Genoese dying in the Kingdom, intestate, should revert to his countrymen, i.e., we presume, to his next-of-kin, and failing them, to the Republic. As regards a Genoese who should have married an Armenian woman, property coming through her was to revert to the Armenian Crown if her husband, having survived his wife, died intestate or without next-of-kin.
From the Privilege of 1288 we also learn some further facts concerning the Customs dues of Lesser Armenia. It would seem that these were of two kinds—fixed and "ad valorem.” For we read that the former were by this Diploma abolished in favour of the Genoese, while the latter were fixed according to a scale given there. The old vexed question of the dues exacted on goods passing through the defiles of Mount Taurus reappears here, one of the provisions being for the definite settlement of the dues at the defile of Gouglag. In the attempt which was made by the Genoese the following year to get some further privileges conceded, they asked for the abolition of dues on goods exported from Armenia into the neighbouring Mohammedan States, the Seljuk Sultanate of Khonieh and the Turkoman Emirate of Cappadocia, known to the Armenians under the generic name of “Turchia ;” but we do not know what answer, if any, was made to this demand by Hethoum II. It is safer, therefore, to picture to ourselves the legal position of the Italian traders and settlers in Lesser Armenia as we know it from indisputable documents. We have seen that Eastern Christians granted to Latin immigrants every privilege of exterritoriality of justice and worship which a Christian State could have desired for its subjects in a Mohammedan country. We have seen that Western Consuls were judges of exterritorial Consular Courts as far back as the Thirteenth Century. We may well ask whether some such arrangement would not be the simplest and readiest mode of initiating the longpromised Reforms in our new “Protectorate” of Asia Minor.
III.-FOREIGN JUDGMENTS. WE
E remember a quaint story of a somewhat too liberal
priest-possibly a Gallican, in days when as yet Gallicanism had a substantive existence-who, on being gently reminded that he was bound to interpret Scripture in accordance with the decrees of the Councils, and the “unanimis consensus Patrum," observed, with a delicate irony, “Ah, Patres! vastissimus campus!”
Our own feelings are very similar as we enter upon the wide field of Foreign Judgments, of which, indeed, in our present article we can hope to touch but a small portion. The subject is one of which the importance has been growing with the increase of international relations in every sphere of life, juridical, political, commercial, social, throughout the civilised world. It has been taken up, as was natural, primarily by those nations, both in the Old and New World, whose laws have a close common tie in their common descent from the Fountain of Western Jurisprudence, which forms the general scientific basis of the Codes of all the so-called Latin Races. Slightly touched on by Heffter, and at somewhat greater length by Calvo, it has formed the subject of separate treatises by an eminent living Italian Publicist and Professor, Pasquale Fiore. * It has been kept before the juridical world of Western Europe by learned writers, of various countries, in the pages of our excellent contemporaries, the “Revue de Droit International,” of Ghent, and the "Journal de Droit International Privé," of Paris. It is classed as one of the indirect means of the manifestation of International Law by one of the most recent of South American Publicists, Sr. Almancio Alcorta, Professor in the University of Buenos Ayres, and it formed the subject of Resolutions passed by the recent Congress of Spanish-American Jurists, held at Lima, in 1878, with the view of putting an end, as far as might be, to that Conflict of Laws which, notwithstanding their well-intentioned efforts, seems likely still to hold its ground and tax the energies of future generations of judges and advocates in all lands. In our own country we have a recent work, by Mr. J. Alderson Foote, I and a still more recent contribution to the literature of this branch of jurisprudence has been made by Mr. F. T. Piggott, s to whose useful and welltimed volume we shall, for the present, refer our readers who wish to find in a convenient form the cases establishing the doctrine and practice of the English Courts in the matter of Foreign Judgments.
There being two broad divisions of our subject, the Civil and the Criminal, we shall first consider the former. Any
* Effetti Internazionali delle Sentenze e degli Atti. Parte Prima. Materia Civile. Pisa. 1875.
+ Tratado de Derecho Internacional. Tom. 1. Buenos Aires. Biedma. 1878.
I Private International Jurisprudence. Stevens & Haynes. 1878.
§ Foreign Judgments Their Effect in the English Courts. Stevens & Sons.
recognition which is accorded to a Foreign Judgment, having first of all to be reconciled with the fundamental doctrine of the sovereignty and independence of States, we shall not be surprised to find some text-writers putting the case for such recognition rather mildly. Heffter,* for instance, cautiously observes that “ the principle of the sovereignty and independence of every nation has not so absolute and exclusive a character as to cause all laws and acts emanating from foreign sovereigns to be void of all authority outside the territory of such sovereigns." In regard to the examination of “communications emanating from foreign authorities," by which he appears to mean Foreign Judgments, he proceeds to lay down the rule that they are to be regarded as authentic, provided neither the competence of the authority, nor the authenticity of the document be called in question. And he adds that “no doubt the laws of a State may also give direct effect to a certain extent to Acts emanating from foreign authorities, at least on the express or tacit condition of perfect reciprocity.” But he also distinctly lays down that "no State is bound to authorise the execution on its territory of Foreign Acts and Judgments.” Such a position, indeed, flows directly from the fundamental principle, Par in parem non habet imperium. Calvo,t with less accuracy, as it seems to us, says, “ The obligatory force which the legislation of one State may have on the territory of another depends on the express or tacit consent of the interested parties.” We are here tempted to ask whether it would not be a dangerous principle to allow the " obligatory force” of a foreign legislation to be in any case dependent on mere “ tacit consent ?" And further, who, we may ask, are the “ interested parties ?" Surely, they are the several States, quite as much as the individuals who may be concerned.
* Le Droit International de l'Europe. Par Bergson. 1873. Lib. I., ss. 34, 35.
+ Le Droit International Théorique et Pratique. 1870. I., P. 352.