Orders in

British subjects in places subject to foreign jurisdiction, engaged the attention of the Foreign Office; the result was satisfactory in every respect, for Orders in Council were issued which extended The Neutrality the Foreign Enlistment Act to these places permanently, and Council. without special regard being had to the war then being waged. The drafting of these Orders was also made to subserve another purpose of great practical utility-the places where foreign jurisdiction is exercised were scheduled into two main classes: Protec- see the lists torates and Consular Jurisdictions. This was essential in the printed on p. 76. case of the extension of the Foreign Enlistment Act, because of the different categories of persons affected in the two classes, and also because certain sections of the Act were inapplicable to places where consular jurisdiction is exercised. But the schedules stand good for all purposes: and the issue of these two Orders in Council may be looked upon as being the most important step in the process of putting the law into a definite shape which has been taken since foreign jurisdiction was first established.

It will be understood then that the Foreign Enlistment Act Extension of extends bodily to all places where the King exercises jurisdic- ment Act, 1870. Foreign Enlisttion abroad; it is necessary, therefore, only to mark the more important of the alterations and omissions which have been made.

The Orders in Council are

for Protectorates, No. 1653, of 24 Oct., 1904, amended, on account of an omission in the schedule, by No. 1716, of 14 Nov. 1904:

for Consular Jurisdictions, No. 1654, of 24 Oct. 1904.

It will be convenient and instructive to note the differences between the two Orders in parallel columns.

Protectorates.

The Order extends to all Protectorates in the schedule, including the adjacent territorial

waters.

Consular Jurisdictions.

The Order extends to all persons and to all property subject to Foreign Jurisdiction Orders in Council.

The different articles of the Orders follow the sections of the Act, and deal with the offences of "Illegal Enlistment", "Illegal Shipbuilding and Illegal Expeditions", "Illegal Prize", and "Legal Procedure."

The venue in respect of Omitted. offences by persons may be that

of the district, town or place in
which the trial is held, the
offence being averred to have

The highest Criminal Court Omitted.

in a Protectorate may direct

that an offender shall be removed for trial to some other place in the dominions or in some other Protectorate, when it is of opinion that it would be conducive to the interests of justice.

Proceedings for the condemnation and forfeiture of a ship or equipment, or arms and munitions of war, shall require the sanction of the Officer Administering the Government of a Protectorate.

Special power of the Officer Administering the Government of a Protectorate to detain ships in probable contravention of the Order. [art. 23]

Proceedings for the condemnation and forfeiture of a ship or equipment, or arms and munitions of war shall require the sanction of the Minister.

Special power of the Minister to detain ships in probable contravention of the Order. [art. 20]

Special power of the Officer Omitted. Administering the Government

of a Protectorate to grant a search warrant to enter any dockyard or other place to enquire as to the destination of any ship in probable contravention of the Order.

cf. Section VI.

IX

The Exercise of the Administrative Power.

WE HAVE now to enquire into the manner in which the King's administrative power is exercised, a subject which is of importance both theoretically and practically.

In dealing with the general principles governing the exercise of jurisdiction, the exercise of administrative power has been justified even in the case of so limited a grant as that acquired by the treaty with China. But, although the Foreign Jurisdiction Act deals in the abstract with the King's power and with all its elements, assuming the possibility of the widest exercise, the adThe administra- ministrative, like the legislative and the judicial power must in each case be directly traceable to the terms of the treaty, or find its warrant in sufferance. Two questions arise in connexion with this question: administrative power requires persons on the spot to exercise it, and we have, therefore, first to enquire into the machinery by which it is exercised; secondly, we must examine the forms in which it is in fact exercised.

tive power

referable to the treaty grant.

of administrative government in applicable to foreign jurisdiction.

The administrative power, is, as the other powers are, to be exercised in the same way as that power is exercised in conquered Colonial methods or ceded colonies. Whatever form of administration may be necessary in Protectorates, no one would imagine that in a nonprotected country the King would appoint a representative or accredited agent with powers similar to those of a Governor of a Crown Colony, with an Executive or advisory Council invested with the same administrative powers as the colonial Councils. The administrative body of a colony includes the Council and the civil service, whose business it is, apart from ordinary administrative work, to carry out the legislation of the colony, in so far as that legislation requires or permits it, in matters which lie outside the jurisdiction of the Courts. The orders given relate, not to questions between persons, but to those which concern what may be called the territorial administration of the colony, and

affect persons who are interested or concerned in it. But the
King's foreign jurisdiction is essentially personal, and in no sense
territorial; and therefore from this point of view alone, an Execu- cf. p. 10.
tive Council and a civil service would be both out of place and
useless.

But the King has already in the countries where his foreign jurisdiction is exercised, officers charged with other functions: his Minister, or other diplomatic representative, and his staff, charged with duties of representation vis à vis the foreign State, and his Consuls and their staffs, charged with the ordinary consular duties. The practice has therefore arisen of utilising both these classes of officers for the discharge of the duties which arise in connexion with the exercise of foreign jurisdiction.

For the purpose of the judicial power the Consuls have judicial duties added to their ordinary duties, special Judges being appointed to assist them in countries where the circumstances are sufficiently important to warrant the creation of a Supreme Court. In the Additional duties same way, for the purpose of exercising the administrative power, Ministers and imposed on His Majesty's Ministers are charged with the performance of Consuls. special duties. But it is important to bear in mind that neither the Consuls nor the Ministers have any inherent powers resulting from foreign jurisdiction: they have to be specially invested with them by the King, and he does this as part of his legislative power by Order in Council.

One of the most practical ways in which the services of the Ministers are utilized is in connexion with the Applied Acts, where action on the part of an executive officer is required for the purpose of putting an Act in force; as in the case of the Fugitive Offenders Act, 1881, and the Colonial Prisoners Removal Act, 44& 45 Vict.c.69. 1884, in virtue of which the Governors of colonies have many 47 48 Vict.c.31. ct. p. 98. duties to discharge. These duties have to be performed in oriental f. p. 108. countries by the British Minister. The most common substitution in these Acts is that of the Minister in the place of the Governor or Government of a colony.

In the case of the Consuls it is specially important to remember Consular duties that these duties in no way interfere with or modify the powers served by the specially prewhich they have as Consuls, either by custom or statute, a point Order. of great importance in connexion with the adminstration of the Merchant Shipping Act. In the China Order this is expressly dealt with in art. 161, which provides that—