it [s. 73] and a ship may be adjudged to be forfeited under the Act. [s. 78] Part I of the Act,-"Registry"-applies to all places where Application of the King has jurisdiction. [s. 91] Part I. Part II. If a colonial Legislature by law applies or adopts any provisions Application of of Part II of the Act,-"Masters and Seamen "-which do not otherwise apply, to any British ships registered at, trading with, or being at, any port in the colony, and to the owners, masters, and crews of those ships, such law shall have effect in places subject to foreign jurisdiction, as if it were part of this Act [s, 264] The Public Authorities Protection Act, 1893* for the pur- 56&57 Vict. c. 61. poses of the provisions of Part III-"Passenger and Emigrant Ships" of the Act (other than the provisions relating to passenger steamers only) shall apply to every place where the King has jurisdiction. [s. 358] Part XIII of the Act-"Legal Proceedings"-is included in the 1st schedule of the Principal Act which contains the Acts of. p. 86. which may be applied by Order in Council. The method of its application has been considered earlier in this section. Where any thing is authorised to be done by to or before a Power to deBritish consular officer, and there is no such officer in a country signate officers to perform duties subject to foreign jurisdiction, it may be done by to or before an under the Act. officer designated by Order in Council. [s. 737] VIII The Exercise of the Legislative Power. To the extent shewn in the preceding Section, the exercise of the King's legislative power has been, if not controlled, at least directed by Act of Parliament. The selection of certain specified statutes for extension to foreign jurisdiction would seem to amount to an intimation that Parliament considers it appropriate that they should be so extended, leaving it, however, to the King in Council to determine whether, and to what extent, they should be extended. This Act is referred to in Section V, under s. 13 of the Principal Act. cf. p. 63. cf. Section VI. The Courts in vested with Bank ruptcy, Probate, and other jurisdictions, in addition to civil and criminal. cf. p. 10. cf. p. 80. Application of criminal law of England. But it is obvious that much more legislation is necessary for the proper exercise even of the main objects of the jurisdiction-deciding questions of disputed rights between British subjects: punishing offences committed by British subjects. The method adopted—of introducing the law of England bodily, or as in the case of Zanzibar, part of the law of India,-has already been explained and justified. In this Section the manner and the details of the introduction must be more particularly examined. But even with the adaptation of a body of laws for these two purposes, and the creation of Courts to apply and enforce them, the necessities of the situation are not fully complied with. The Courts in England have other important jurisdictions with which it is necessary to invest the Consular Courts if there is to be a complete system of judicature appropriate to the needs of the British community, if the community is to have that "complete personal protection," and "assurance of satisfactory judicial tribunals" which it is the object of obtaining exterritorial privileges to achieve. These are the Bankruptcy, Probate, Matrimonial and other jurisdictions: and in the Orders in Council there are clauses conferring the requisite powers on the Consular Courts. They are drawn in the broadest possible manner, and always subject to the modification that the English, or other, law on the subject is to be in force "as far as circumstances admit". As to these clauses difficult questions of interpretation arise, which have already been examined in a previous Section. There is also the further question, to be examined as occasion arises, how far the exercise of these special jurisdictions are warranted by the treaty or sufferance. It is in these clauses also that the Acts contained in the Ist schedule are to be found applied, with or without modifications. Other important Acts are specially applied in the same manner. I propose in setting them out, to adopt the same method of paraphrase as in the previous Section. A.-CRIMINAL JURISDICTION. By article 35* the whole of the criminal law of England is applied “as far as circumstances admit": power, however, being * The articles referred to in this Section are, as in previous Sections, those of the China Order. reserved to create special offences by Order in Council, or by Rules made under such Order. 35 (i) Except as regards offences made and declared such by this or any other Order or by any Rules or Regulations made under any Order : Any act that would not by a Court of Justice having criminal jurisdiction in England be deemed an offence in England, shall not, in the exercise of criminal jurisdiction under this Order, be deemed an offence, or be the subject of any criminal proceeding under this Order. (ii) Subject to the provisions of this Order, criminal jurisdiction under this Order shall, as far as circumstances admit, be exercised on the principles of, and in conformity with, English law for the time being, and with the powers vested in the Courts of Justice and Justices of the Peace in England, according to their respective jurisdiction and authority. This fundamental principle being established, the Order in Council proceeds to deal specifically with certain clauses of offences. ADMIRALTY OFFENCES. Admiralty offences are specially dealt with by art. 39, in which three of the Acts specified in the 1st schedule are applied as adapted. These have already been considered in the last Section. CORONER'S JURISDICTION. By art. 68, the Court is invested with all the powers and duties appertaining to the office of coroner in England, in relation to deaths of British subjects happening in the district of the Court: and also in relation to deaths of any persons having happened at sea or on board British ships arriving in the district, and to deaths of British subjects having happened at sea on board foreign ships so arriving. cf. pp. 84-88. Consular Court in The duties of the coroner of enquiring into all cases of sudden Jurisdiction of death, or death under any circumstances of suspicion, form so the matter of integral a part of the administration of the criminal law, that there inquests. is no difficulty in tracing the warrant for the exercise of the power to the simple grant of criminal jurisdiction over nationals. Under the Coroners Act, 1887, the cases in which the Consular Court will hold an inquest under the Coroners Act, 1887, are, 50 & 51 Vict. c. 71. when the dead body of a British subject is found in the circums- §. 3. tances specified in the article, and there is reasonable cause to suspect that such person Warrant for arrest. [s. 5] Foreigners. i. Has died either a violent or unnatural death: or ii. Has died a sudden death of which the cause is unknown: or iii. Has died in prison, or in such place or under such circumstances as to require an inquest in pursuance of any Act of Parliament [which Act presumably would be applied pro hac vice]. The warrant for arrest or detention of a person charged with murder or manslaughter, or of being accessory before the fact to a murder, by the inquisition can obviously only be directed against a British subject; but presumably the inquisition may charge the offence against either a native or a foreigner, leaving it to the foreign Consular Court to take cognizance of the case. On the other hand, presumably, the Court will take notice, and give Foreign inquests. effect to an inquisition held by a foreign Consular Court under its own law, the result of which is to charge a British subject with the murder of a foreigner. Dead body found in sea or creeks. of." Nationality," Vol. II, p. 134. Treasure trove. It is provided by s. 7, that "where a body is found dead in the sea, or any creek, river, or navigable canal within the flowing of the sea where there is no deputy coroner for the jurisdiction of the admiralty of England, the inquest shall be held only by the coroner having jurisdiction in the place where the body is first brought to land." This determines the question of the jurisdiction of the Consular Court in the cases contemplated by the section, and it is not necessary to go into the question of the jurisdiction of the admiral and coroners appointed by him in such cases. The sections of the Act which regulate the procedure at inquests, and with regard to medical witnesses and post mortem examinations, are in force in the Consular Courts when holding inquests, in so far as they may be applicable. With regard to the jurisdiction of coroners "to inquire of treasure that is found, who were the finders, and who is suspected thereof," preserved by s. 36, it seems doubtful whether it can be conferred on the Consular Court, as the coroner is bound to secure the property on treasure and trove for the King. The property so found would go to the Sovereign or to some other person according to the law of the oriental country. OFFENCES IN RELATION TO COPYRIGHT, INVENTIONS, DESIGNS, Article 69 extends the penal clauses of the English Acts relating to these subjects to consular jurisdiction. 69. Any act which, if done in the United Kingdom, or in a Art. 69 of China British possession, would be an offence against any of the Order. following statutes of the Imperial Parliament or Orders in Council, that is to say: The Merchandize Marks Act, 1887: The Patents, Designs, and Trade-Marks Acts, 1883 to 1888: Any Act, statute, or Order in Council for the time being in force relating to copyright, or to inventions, designs, or trademarks: Any statute amending, or substituted for, any of the abovementioned statutes: in Patents Acts, Trade-Marks, [which includes (i) the Merchandize Marks Acts, Amendments shall, if done by a British subject . . ., be punishable as a enforcement of There are two provisos:-(i) That a copy of the Act or Order is Provisos to to be published in the Consulate, and to be open for inspection by penal clauses in any person at all reasonable times: and no person is to be punished Patents Acts, &c. for anything done before the expiration of one month after such publication, unless he is proved to have had express notice of it. (ii) No prosecution is to be entertained on behalf of a person not a British subject, unless effectual provision exists for the punishment in Consular or other Courts in China of similar acts committed by the subjects of the State of which such person is a subject, in relation to, or affecting the interests of, British subjects. The offences are made "grave offences" against the Order, and as such punishable under art. 61 *, which supersedes the penalties provided in the statutes. The punishments for "offences" against the Order, by art. 60, are i. fine not exceeding £5, without imprisonment: or ii. imprisonment not exceeding one month, without fine: or iii. imprisonment not exceeding 14 days, with fine not exceeding 50 shillings: the imprisonment is to be without hard labour. [This note is continued on p. 130.] |