Art. 161 of China General powers of legislation of Minister. Municipal Regu- cf. p. 136. Ministers power of regulating prisons. Nothing in the Order shall prevent any Consular officer in China from doing anything which His Majesty's Consuls in the dominions of any other State in amity with His Majesty are, for the time being, by law, usage, or sufferance, entitled or enabled to do. The Order does, however, in art. 155, confer more general legislative powers on the Minister. He is given the power to make Regulations, to be called King's Regulations, for the following purposes: (a) for the peace, order, and good government of British subjects in relation to matters not provided for by the Order: (b) for securing the observance of any treaty for the time being in force relating to any place, or for securing the observance of any native or local law or custom, whether the treaty, law, or custom, relate to trade, commerce, revenue, or any other matter: (c) for regulating or preventing the importation or exportation in British ships or by British subjects of arms or munitions of war, or any parts or ingredients thereof, and for giving effect to any treaty relating to the importation or exportation of the same: (d) for requiring export and import returns to be made by or on account of any British subjects subject to the Order, or in any British ship; and providing penalties for breach, of fine, imprisonment, and forfeiture of offending goods. The Minister may further, in conjunction with the Ministers of other Powers, make Regulations for the municipal government of any foreign concession or settlement in China. [art. 156] Neither the King's or the Municipal Regulations, nor, presumably the International Regulations made under art. 74, are to affect British subjects until they have received the King's approval: except in case of urgency, when they are to continue in force. until they have been disapproved. [art. 157] The establishment of prisons is essential to the proper exercise of the criminal side of the King's judicial power. In China, the Judge of the Supreme Court may, subject to the approval of the Secretary of State, prescribe the manner in which, and the prisons in China at which, the sentences of the Court are to be carried. out. [art. 65] And by art. 159, the Minister's power of making Regulations extends to the governance, visitation, care and superintendence of prisons, the removal of prisoners from one prison to another, and the infliction of corporal or other punishment on prisoners committing offences against the rules or discipline of a prison. In Crown Colonies it is usual for the Governor to be invested Limited exercise mercy. with the exercise of the King's prerogative of mercy; but the of prerogative of same power is not given to the Minister, although he has certain limited powers derived from the prerogative. By art. 64, when any person is sentenced to death, a copy of the evidence is to be sent to the Minister together with a report and observations of the Judge, and the sentence is not to be carried out without the direction of the Minister in writing under his hand. If the Minister does not direct the death sentence to be carried out, he is to direct what punishment in lieu thereof is to be inflicted a power which does not seem to include complete remission of the sentence. But by art. 67, if a Judge reports to the Secretary of State or the Minister, recommending a mitigation or remission of any punishment awarded by any Court, it may be remitted or mitigated accordingly, and this would seem to include death sentences. It is expressly provided that nothing in the Order is to affect the King's prerogative of pardon. Court over Other provisions affecting the Minister's relation to the Consular Jurisdiction of Courts are provided by art. 30. The Court is not to exercise any Minister: rights jurisdiction in any proceeding whatever over the Minister, or over of Legation. his official or other residences, or his official or other property: nor over any person attached to or being a member of, or in the service of the Legation, except with the written consent of the Minister. If it appears to the Court that the attendance of the Minister, or of any person attached to or being a member of the Legation, or being in the service of the Legation, to give evidence is requisite in the interests of justice, the Court may address to the Minister a request in writing for such attendance. But in such case no evidence shall be given or document produced, if, in the opinion of the Minister, it would be injurious to His Majesty's service. In this connexion it should be noted that by s. 6 (1) of the Offences under Official Secrets Official Secrets Act, 1889,* its provisions apply "to all acts made Act. offences by this Act when committed by British officers or sub- 52 & 53 Vict.c.52. jects elsewhere" than in the dominions. By s. 6 (2), an offence *This Act should have been included in Section VII B, among the "Acts applied by express provision therein." Minister to Rules of Court. alleged to have been committed out of the United Kingdom may be tried by "any competent British Court in the place where the offence was committed;" the Consular Courts have, therefore, jurisdiction under the Act. The offences are, disclosure of information (s. 1): breach of official trust (s. 2): inciting or counselling to commit such offences (s. 3). But by s. 7 a prosecution is not to be instituted except by or with the consent of the Attorney General: or, where the prosecution is instituted in any Court out of the United Kingdom, by or with the consent of the person who exercises the like functions as the Attorney General: that is to say, the Crown Advocate, in Consular Courts. The Minister may approve Rules of Court made by the Judge approve urgent of the Supreme Court in case of urgency, and they are in such case to continue in force unless and until they are disapproved by the Secretary of State. cf. p. 153. cf. p. 159. cf. p. 79. Wide form in which the Minister's legislative power is conferred. cf. p. 20. The Minister may further make rules in connexion with the indexes of mortgages. These are all the executive powers conferred on the Minister by the China Order which are independent of the Applied Acts, under which he has substituted powers which he exercises in lieu of the Governor of a colony. There can, I think, be no doubt that the statement made in a previous Section, that such executive action. as is authorised by Order in Council is intended to fall, and does in fact fall, within the terms of the treaty grant, is justified. The very wide terms in which the general power of making King's Regulations is conferred on the Minister cannot, however, be overlooked. They may be such as are necessary for the "peace, order and good government" of British subjects in China. This is the common form in which powers of government are granted to the governing authority of all places subject to the dominion of the British Crown: whether, as in the case of India, to the Governor General [see 24 & 25 Vict. c. 67, s. 23, and s. 44 as to the Presidencies], as in the case of the Australian Commonwealth, to the Parliament [see 63 & 64 Vict. c. 12, s. 51], as in the case of occupied colonies, to the King in Council [see 50 & 51 Vict. c. 54, s. 2], as in the case of the Crown Colonies, by Letters Patent, to the Governor and the Legislative Council: or, as in the case of Cyprus, to the High Commissioner and his Council. The symmetry of our legislation in this respect would have been marred if any other form had been used; and although the result of it is that, theoretically, the British Minister in countries subject to foreign jurisdiction has as full a legislative power as any other body or officer charged with the King's government, yet I do not think it can be said to import any intention to depart from the fundamental principle of the subject, or to imply that the Minister's power of legislation is to be exercised otherwise than as treaty or sufferance may justify. The few King's Regulations which have in fact been issued in China shew that practice warrants this statement. The article itself, however, contains one practical limitation; the power of making Regulations is to be exercised in relation to matters "not provided for by the Order," and the Order, as we have seen, covers practically the whole field of law. And further, the subjects in respect of which the power of legislating is most likely to be exercised are specially indicated in the remaining subclauses of art. 155, all of which are justified on the face of them. REGISTRATION. The subject of registration is dealt with in different ways. In Varying practice some cases, as in that of Siam, it is expressly mentioned in the as to registration. treaty; the privileges are then only granted to registered British subjects. In other cases it is made compulsory only by the Order in Council; but here again the practice is not uniform. In some cases again a pecuniary penalty for non-compliance with the Order is imposed; in other cases the method of recovering the fee only is indicated. In all cases a small fee, of about £1, is charged. A question of some difficulty arises in connexion with this fee. By some it is argued, not without a show of plausibility, that the fee is a tax- -a "poll tax," that most obnoxious of all taxes—and that the British Government has no authority by treaty to levy any taxes The argument, if it were applied to an attempt to levy an income tax, for example, is, as I have already pointed out, a cf. p. 62. sound one, but the application of it to the fee for registration is, Objections to I think, open to some question. The register is essential in registration fee. order that the protecting duties of the Minister may be properly exercised: it would be essential even if there were only the national and the British communities; it is ten times more important when the foreign community is composed of many nationalities. If the sheep upon the mountains are not marked, how shall the shepherds know their sheep? Justification of registration fee. I am disposed, therefore, to regard the registration fee in the light of a charge for work and labour done, or service rendered, and in the same category as other fees charged by the Consuls on the authority of Orders in Council issued under s. 2 of the Consular 5455 Vict.c.36. Salaries and Fees Act, 1891. Penalty for *cf. p. 129. The provisions of the China Order with regard to registration are contained in art. 162. Resident British subjects are required to register themselves personally at the Consulate of their district. in the month of January in every year: and also British subjects arriving in China, unless borne on the muster-roll of a British ship there arriving, on the expiration of one month after arrival, when they are deemed to be resident. The registration of a man includes that of his wife and of all females and minors being his relatives in whatever degree, living under the same roof with him at the time. The fee payable, and the form of registration may be prescribed by regulations made by the Minister under art. 155. Failure to register is declared to be an offence against the failure to register. Order, the offender being liable to fine and imprisonment as provided by art. 60*: together with this further important penalty, that "any Court or authority may, if it thinks fit, decline to recognise him as a British subject," which carries in the bare statement of it both the reason and the justification of the practice of registration. X The Exercise of the Judicial Power. THE EXERCISE of the judicial power is subservient to the exercise of the legislative power by which the special forms of the jurisdiction of the Consular Courts are determined. There are, however, a few matters still to be considered which, while they depend on articles of the Orders in Council, yet raise questions in which the principles proper to guide and determine the exercise of the legislative power in matters of jurisdiction are involved. |