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So far as the general matrimonial jurisdiction of the Consular Matrimonial Court is concerned, there seems to be little doubt that it falls
within treaty within the terms of the treaty grant, as involving a decision in grant. regard to rights arising between British subjects. But even when all the complicated qnestions of jurisdiction which have troubled the English Courts with regard to the exercise of matrimonial jurisdiction over foreigners are removed, there still remains a question in connexion with consular matrimonial jurisdiction in respect of British subjects which is not free from difficulty.
In the first place, it is limited to cases in which the husband is British, the nationality of the wife being that of her husband [Neturalization Act, 1870, s. 10 (i)].
33 34 l'ict.c.14 In the second place, the operation of art. 101 limits it to resident British subjects, and it would seem, therefore, that this condition must apply to both parties: and also to the co-respondent, if there is one.
But the jurisdiction of the Divorce Court in England is independent of residence and also of nationality, and is based on other considerations. I think that it does not admit of question that it was not intended to put the matrimonial jurisdiction of the Consular Court on a wider basis in this respect than the English Courts: and therefore the English and the consular rules must be combined. It is unnecessary to renew here the enquiry Consular jurisdicso often made whether the foundation of the English jurisdiction Lion probably
founded on exisbe domicil, or the existence of the matrimonial home in England: tence of matriit is sufficient to say that in the Consular Court the condition monial home. of residence within the “limits of the Order” is superadded to the English rule whatever it may be. But if the decision in re re Tootal's trusts, Tootal's trusts, to be presently discussed, be sound, then, if the 23 Ch. D. 532. English jurisdiction depends on domicil alone, the matrimonial jurisdiction of the Consular Court vanishes: for there can be on domicil in an eastern county. But if the English jurisdiction depends on the presence of the matrimonial home in England, then the jurisdiction of the Consular Court may be held to exist when the matrimonial home is within the limits of the Order. It may be pointed out that the doctrine of the matrimonial home was elaborated in the Court of Appeal in Niboyet v. Niboyet, in the case of a Niboyet v. Niboyet foreign Consul, a person who could not acquire an English domicil. 4 P.D. I. The case is therefore altogether paralled with that of persons residing in a country in which they cannot acquire a domicil.
Le Mesurier v. This decision was criticised by the Judicial Committee in Le Le Mesurier,
Mesurier v. Le Mesurier, and it has been said to have been over1895, A.C. al P. 531.
ruled. It is sufficient for our present purpose to note that Lord Watson admitted that there may be residence without domicil sufficient to sustain a suit for restitution of conjugal rights, for separation, or for aliment. As the consular jurisdiction does not extend to divorce the criticism of the earlier case need not detain us here.
Concurrent jurisdiction in matrimonial causes is by no means an uncommon incident of the law. In nearly all cases of English subjects resident in an oriental country, their domicil will be English, and the English Court will have jurisdiction to pronounce decrees as well as the Consular Court: the English Court having sole jurisdiction in the case of dissolution, nullity, and jactitation, which are excepted from the consular jurisdiction. But if the domicil which is maintained in spite of continued residence in the oriental country be not English, then the English Court will have no jurisdiction at all, but only the Court of the country of that domicil. LUNCY
The Supreme Court is, by art. 102, so far as circumstances admit, invested in relation to British subjects, with all such jurisdiction relative to the custody and management of the persons and estates of lunatics, as for the time being belongs to the Lord Chancellor or other Judges in England intrusted with the care and commitinent of the custody of the persons and estates of lunatics:
and also with such jurisdiction as may be exercised in England 53&54 Vict.c.5. by a judicial authority under the Lunacy Act, 1890. (imp. Stats.. Vol. 1, p. 288 (:)]
The inferior Consular Courts are also invested with a jurisdiction in respect of the same matters subject to Rules of Court, and until they are made and so far as they do not apply, with such jurisdiction as may be exercised in England by a judicial authority,
and by the Masters in Lunacy under the Lunacy Act, 1890. Analysis of The jurisdiction of the respective authorities in England above Lunacy Act, 1890. referred to under the Act of 1890, is as follows: Inquisition The Judge in Lunacy may upon application direct an inquisition
whether a person is of unsound mind and incapable of managing himself and his affairs [s. 90): which inquisition may be before
a jury, the issue being tried in the Supreme Court. (s. 94] Certificate of The certificate of the Master that an alleged lunatic is of unMaster without jury.
sound or of sound mind has the same effect as an inquisition taken upon the oath of a jury. (s. 95]
The Lord Chancellor may regulate by order the number of Number of jury. jurors to be sworn, but so that every inquisition be found by 12 men at least. [s. 97]
By art. 32 (3) of the Order, a jury in the Consular Court is to consist of not more than 12 and not less than 5, as may be determined by Rules of Court. Presumably, in the case of inquisitions in lunacy, the jury would consist of 12, the statutory number.
The Judge in Lunacy may make orders for the custody of jurisdiction of lunatics so found and the management of their estates: but where Judge in Lunacy. he is capable of managing himself and is not dangerous to himself or others, the Judge may make orders for the commitment of the estate and its management, including the maintenance of the lunatic, but he need not make any order as to the custody or commitment of his person. [s. 108] By s. 110, the power of the Judge extends to property within Property in
colonies. any colony; but this provision cannot be held to confer similar powers on the Consular Judge.
The administrative powers of the Judge in Lunacy apply- Administrative (a) to lunatics so found by inquisition:
powers of Judge in
Lunacy. (b) to lunatics not so found, where an administration order has been made before the commencement of this Act:
(c) to persons lawfully detained as lunatics though not so found:
(d) to persons not so detained and not so found, who, it is proved to the satisfaction of the Judge, through mental infirmity arising from disease or age are incapable of managing their affairs :
(e) to any person who, it is proved to the satisfaction of the Judge, by the certificate of a Master, or the report of the Commissioners, or by affidavit or otherwise, is of unsound mind and incapable of managing his own affairs, and whose property does not exceed £2,000 in value, or the income thereof does not exceed £100 a year:
(f) to any person with regard to whom the Judge is satisfied that he is or has been a criminal lunatic, and continues to be insane and in confinement. [s. 116]
In the case of any of the above-mentioned persons who are not Powers conferred lunatics so found, the powers under the Act which are exercise. on administrator. able by the committee of the estate under order of the Judge, shall be exercised by such person in such manner and with or
without security as the Judge may direct. The order of the
powers without further application to the Judge. [s. 116 (2)] Power to raise
The Judge may order any property of the lunatic to be sold,
charged, mortgaged, or otherwise dealt with, for the purpose of
and 133 to 141.
in the lunatic in the character of trustee or guardian. [s. 128]
By art 102, (5) of the Order, ss. 5 to 7 of the Lunatics Removal 14 & 15 Vict.c.81. (India) Act, 1851, are applied to China, the Supreme Court being
substituted for “the Supreme Court of Judicature at any of the
Presidencies of India”.
or curator of the person or estate of any idiot, lunatic, or person
Session in Scotland.
the King of England: but he can only, except as it may be
only that "all questions in regard to rights, whether of property or person, arising between British subjects [in China] shall be subject to the jurisdiction of the British authorities”, coupled with special provisions as to disputes between British subjects and Chinese, the warrant for the exercise of lunacy jurisdiction is, to say the least, doubtful. For although the “management of his Points of doubt affairs” might be held to connote the settlement of questions lunacy jurisdic
in connexion with thereafter to arise between the lunatic and other people, the tion. question whether he is capable of "managing himself” is purely personal to the lunatic: and the King is not even pro formâ a party to the proceedings by way of inquisition. Even this is not a full statement of the difficulty; for the management of the affairs of a lunatic in China, or even in Corea, must inevitably involve the exercise of jurisdiction in respect of property in which foreigners may have an interest. There is, therefore, included in the exercise of lunacy jurisdiction an extension of its effect with regard to foreigners who do not submit to the jurisdiction.
On general principles, s. 96 of the Act of 1890, which allows an inquisition to be had where the alleged lunatic is out of the jurisdiction, finds no application to a Consular Court: nor, as pointed out in the analysis of the Act, s. 110, which extends the powers and authority of the Judge in Lunacy to property within any British possession. And conversely, this section does not extend the power and authority of the Judge in Lunacy to property within the jurisdiction of a Consular Court.
Apart from these considerations, however, the Consular Court has the full power of the Judge in Lunacy to make orders for the custody of lunatics so found by inquisition and the management of their estates: or, where the lunatic is found to be capable of managing himself, to make orders for the commitment of the estate of the lunatic and its management, including all proper provisions for the maintenance of the lunatic (s. 108). A certificate of an inferior Consular Court that the alleged lunatic is of unsound mind and incapable of managing his affairs, or that he is of sound mind and capable of managing his affairs, has the same effect as an inquisition before a jury. (s. 95).
The powers of the Judicial Authority, which may also be exercised by the Consular Supreme Court, are defined in s. 9 and following of the Act of 1890, as amended by subsequent Acts.