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Coast Protectorate (3), Northern Territories Protectorate ('), and Gambia Protectorate (5); those in South Africa, in the Bechuanaland Protectorate (®); and Orders in Council have been issued with reference to them, based entirely on the Foreign Jurisdiction Act, reciting that jurisdiction had been acquired in these different territories, and directing how it shall be exercised.
The important point in respect of these Orders is that the jurisdiction is not exercised by the King, but his power is delega- Power delegated ted to the Legislatures of the adjacent Colonies, whose names the Colonies. to Legislatures of Protectorates bear. In the case of South Africa, the power is delegated to the High Commissioner for South Africa, and there is an express general reservation of any jurisdiction already existing by statute.
This delegation of power comes strictly within s. 1 of the Act of 1890, which provides that the power acquired shall be exercised in the same manner as in a conquered or ceded colony. There can be little doubt that if territories adjacent to a colony are acquired by cession or conquest, the prerogative of the King would allow him to annex them to a neighbouring colony, or to make them a dependency of any colony, putting them within its legislative sphere, instead of erecting them into a separate colony. The case of Seychelles and Mauritius which were at first joined, and afterwards severed, by Order in Council, is an illustration of power so exercised.
There has been a similar delegation of power to the Governor Delegation of General of India in Council, in the case of the King's power and Power to jurisdiction in India and in certain territories adjacent thereto, of India. by the Indian (Foreign Jurisdiction) Order in Council, II June, 1902.
The powers of the Governor General in Council are defined to be
(a.) to determine the law and procedure to be observed, whether by applying with or without modifications all or any of the provisions of any enactment in force elsewhere, or otherwise: (b.) to determine the persons who are to exercise jurisdiction,
either generally or in particular classes of cases, and the powers to be exercised by them:
(c.) to determine the Courts, Authorities, Judges, and Magistrates, by whom, and for regulating the manner in which, any jurisdiction, auxiliary or incidental to, or consequential on, the jurisdiction exercised under this Order, is to be exercised in British India:
(d.) to regulate the amount, collection, and application of fees.
The Relation of Parliament to the King's Foreign
THE FUNDAMENTAL principles of exterritoriality having been con-
Limitation of the The treaty-making power is one of the prerogatives of the prerogative when acts are required Crown, whether treaties relate to peaceful or to warlike affairs. to be done in the The law does not fetter the prerogative with regard to the mere kingdom. acquisition of rights from, nor the mere incurring of obligations to, a foreign Sovereign. But if either the enjoyment of the right, or the performance of the obligation, involves the performance of any act in the kingdom, though it be the mere giving of an order, then the law of the constitution steps in and the sanction of Parliament is required. The acts of the Sovereign within the realm are so fettered by the constitution that it is difficult to conceive a treaty requiring acts to be done in England affecting personal rights, which, save in one case, the King could carry out without the creation by Parliament of the necessary machinery. Extradition is the instance of this theoretical view of the case
which suggests itself at once. The Act of 1870 does not authorise Analogy between the King to enter into extradition treaties, but deals with the Foreign Jurisdicmatter "where an arrangement has been made with any foreign tion. State". It provides the necessary machinery for fulfilling the treaty obligation of surrendering foreigners charged with crimes, and, in so far as it is necessary, for carrying into effect the treaty right in the case of criminals surrendered to England. It is true that political offences are excluded, as also offences not mentioned in the schedule, and this, in a certain sense, limits the prerogative; but the more accurate way of looking at this is to say that Parliament declines to provide the machinery, and therefore renders the obligation in such cases, if undertaken, impossible of fulfilment.
The analogy of fact between extradition and foreign jurisdiction is not perfect, because the former necessitates the performance of certain acts in England, whereas by an exterritorial treaty the performance of the acts resulting from the treaty grant is contemplated in the foreign country. If it were possible to imagine the King himself acting in China, for example, on his acquired rights in that country, the doubts as to the legality of his action by constitutional law would perhaps be more difficult to solve. But though the King has representatives in the foreign countries where these rights are acquired, they cannot act of their own mere motion, but only on instructions; and these emanate from England, and, therefore, must be given in a constitutional manner. Such instructions are in fact given by the King in Council: they are, therefore, subject to the constitution, and except in so far as the prerogative otherwise allows, Orders in Council affecting personal rights cannot be issued except as the law provides, whether their scope be territorial or extra-territorial.
sary to enable
This seems to reduce the question to a somewhat refined The Act is necespoint; but it does account, in a not unsatisfactory manner, for extra-territorial the necessary interference of Parliament in a matter which, Orders to be so far as its existence is concerned, is essentially within the prerogative. The Extradition Act was necessary because the King cannot now give executive commands. The Foreign Jurisdiction Act is necessary because the exercise of the jurisdiction involves the issuing of extra-territorial commands to subjects as well as to officers; and by the common law, the only extra-territorial power of legislation inherent in the Sovereign is in respect of the Crown Colonies, strictly so called.
Prerogative right of legislation for conquered colonies.
For countries which come to the Crown by virtue of conquest or cession the Sovereign may legislate. But the prerogative extends no further. In the case of colonies acquired by occupation, although they come within the King's dominions, he has no such inherent power; and, therefore, in such cases the authority of Parliament is necessary to enable Orders in Council to be 6 & 7 Vict. c. 13. issued: as in the case of the Act of 1843,-to provide for the government of the settlements on the Coast of Africa and in the Falkland Islands.
23 & 24 Vict.
This Act was extended by the Coast of Africa Amendment Act of 1860, which was rendered necessary by the fact that other places had been occupied by Her Majesty's subjects. Both these Acts were repealed and replaced by the British Settlements Act, 1887, which deals generally with the subject. The preamble recites that, "Whereas divers of Her Majesty's subjects have reColonies sanction sorted to and settled in, and may hereafter resort to and settle in,
50 & 51 Vict. c. 54.
divers places where there is no civilised government, and such settlements may have become or may hereafter become possessions of Her Majesty, and it is expedient to extend the power of Her Majesty to provide for the government of such settlements."
The second section provides "that it shall be lawful for Her Majesty the Queen in Council, to establish all such laws and institutions, and constitute such Courts and officers, and make such provisions and regulations for the proceedings in the said Courts and for the administration of justice, as may appear to Her Majesty in Council to be necessary for the peace, order, and good government of Her Majesty's subjects and others within any British settlements . . . ."
The question therefore may be put in this way-Is the examined in con- exercise of the treaty rights of exterritoriality, which have been acquired in virtue of the prerogative, to be regarded as analogous to the exercise of power in the Crown Colonies? If it is, then what is called an "enabling statute" would not be necessary. The better opinion seems to be that this prerogative right of legislation is limited, as the above statutes show, to Crown Colonies, and extends no further: and, therefore, that the acquisition of a similar right of exercising jurisdiction in foreign countries does not dispense with the necessity of an enabling statute. For precisely the same reason, jurisdiction over subjects in countries without regular forms of government, as distinguished
from colonies acquired by occupation or settlement, has never
always [f. s. 2 of the Act of 1890.]
In its most concise form, the reason may be thus stated: The comparatively modern rights of exterritoriality have no connexion with, and do not add to, the dominions or dignities of the Crown, with which alone the prerogative has to deal.
The Act which now renders legal the issue in England of Orders in Council regulating the exercise of rights acquired, and thereafter to be acquired, in foreign countries, is known as the Foreign Jurisdiction Act, 1890.
Prior to the passing of this Act, there were already in existence Early Foreign Jurisdiction Acts. some local Foreign Jurisdiction Acts, which also empowered the Sovereign to issue Orders in Council for the government of his subjects in the countries to which they applied: 3 & 4 Will. IV. c. 93, s. 6, for China: 6 & 7 Will. IV. c. 78, for the Ottoman Empire.*
The first general Foreign Jurisdiction Act, 6 & 7 Vict. c. 94, was passed in 1843, and a complete system was inaugurated by which the Queen was empowered to direct from home the full exercise of her foreign powers. The preamble of the Act recited that, "Whereas by treaty, capitulation, grant, usage, sufferance, and other lawful means, Her Majesty hath power and jurisdiction within divers countries and places out of Her Majesty's dominions: and whereas doubts have arisen how far the exercise of such power and jurisdiction is controlled by and dependent on the laws and customs of this realm, and it is expedient that such doubts should be removed":
The Act then enacts "that it is and shall be lawful for Her Majesty to hold, exercise, and enjoy" the foreign jurisdiction so obtained.
doubts which the
In Chitty's Statutes there is a marginal "[sic]" referring to the The nature of the "it is lawful" of the enacting clause. At first sight it looks as Act of 1843 if the Law Officers of the Crown had settled that the doubts were removed. not well founded. I think, however, that the section may probably be correctly paraphrased thus:-" It is lawful for Her Majesty
The former enactment was not repealed till it was included in the Statute Law Revision Act of 1874; the latter, said in 1843 to have already become a dead letter, was repealed by the Act of that year.