cf. p. 14.

The Act of 1990.

The reference to "cession or conquest."

to hold, and it shall be lawful for Her Majesty to exercise, any power or jurisdiction. . . ."

Parliament, as the Courts are not slow to declare, does not combine omniscience with omnipotence; and statements of law in a statute are not always accepted as accurate. But in this case the Earl of Aberdeen assured the House of Lords that the Bill was not a crude effort of legislation, but had been framed with the utmost care, and for months had been under the consideration of the Law Officers of the Crown; and indeed the preamble is framed in full accordance with constitutional principles. It does not question the treaty-making prerogative. The doubts which existed were not as to the acquisition of the rights of foreign jurisdiction, but only as to how far the exercise of them by the Queen was controlled by, and dependent, on the law of the realm. From the previous discussion I think it will appear that it would have been impossible to say that these doubts were not well founded.

In the Act of 1890, "to consolidate the Foreign Jurisdiction. Acts," the doubts are no more expressed, though the phrase "it is and shall be lawful" is retained.

Having legalised the exercise of the foreign power and jurisdiction, the first section proceeds to declare the manner in which it is to be exercised. It is, and shall be, lawful for the King "to hold, exercise, and enjoy" the foreign jurisdiction obtained by "treaty, capitulation, grant, usage, sufferance, and other lawful means, in the same and as ample manner as if [His Majesty] had acquired that jurisdiction by the cession or conquest of territory."

The reference to cession or conquest is unfortunate. The object with which the words were introduced is, however, made clear by what has been already said. There was a doubt whether rights acquired abroad by the Sovereign in virtue of the prerogative could be exercised in virtue of the prerogative; it had been settled that they could not be so exercised, the authority of Parliament being necessary. But seeing that they were none the less rights springing out of the prerogative, when the authority for their exercise came to be given, it was declared that they should in fact be exercised as the prerogative legislative right was exercised in the Crown Colonies: that is to say, by the Orders of the Sovereign in Council.

The same idea is carried out in s. 5 (2) which gives power to extend the Acts mentioned in the 1st schedule to any country where foreign jurisdiction is exercised; thereupon these Acts are to operate as if that country were a British possession, and as the King in Council were the Legislature of that possession.*

if

[As to the value

of these words see p. 82.]

Nevertheless, as I have said, the reference to ceded and conquered territories in a matter of such great delicacy is much to be regretted. The words are misleading to the ordinary British subject who is placed under the jurisdiction, for he is disposed to consider that the Act makes the country in which exterritorial privileges have been acquired to all intents and purposes, so far as he is concerned, a colony of the British Crown. And they are not only misleading to the country by which these privileges have been granted, but have, in strenuous times, been viewed there as insulting to its Sovereign and its Government. Both British residents and nationals attach an undue importance to the words, deeming them to be of direct application. Their meaning is, however, plain. Any jurisdiction which may be acquired The principle of in an oriental country is to be exercised in the same way as similar jurisdiction is exercised in a conquered or ceded colony. The comparison is not between the State granting the privileges and a conquered country, but between the method of exercising the privileges in that State and the method of exercising the rights corresponding to them in a conquered country.

The rights acquired in one oriental country are not necessarily identical with those acquired in another. The jurisdiction of the Courts may be complete, or it may be partial; the law may be administered by an English Judge alone, or he may sit with native assessors; the law to be administered may be English, or it may be native: it may include resident foreigners, or it may not. Whatever the extent of jurisdiction may be, the principle laid down by the first section as to the method of its exercise is, that it is to correspond with the method of exercising the same jurisdiction in a conquered country: that is to say, by Order in Council. The same principle is extended to the details of its exercise.

the Act examined.

cf. p. 26.

* In the few statutes which are extended to places where foreign jurisdic- cf. Section tion is exercised by sections in the statutes themselves, a similar expression VII, B, p. 107. is generally used. It is not, however, used in s. 88 of the Merchant Shipping 57 & 58 Vict.

Act, 1894, which allows ports in oriental countries to be declared "ports of c. 6o. registry" by Order in Council.

of. Section IX.

cf. p. 12.

cf. p. 20.

The alternative method of exercising this jurisdiction would have been to declare the British community in these foreign countries subject to, the sole jurisdiction of the British Parliament. The objection to this course is, I think, obvious; for even assuming it to be within the provisions of the treaties, the colloquial expression "the British Colony" would come to have a too realistic meaning. Both on the ground of convenience, and also because the rights appertain to the prerogative, legislation by the Sovereign in Council was to be preferred.

The exercise of legislative functions in an otherwise independent State might I think be open to objection, which is avoided by the method actually adopted. It is true that the exercise of the King's jurisdiction involves the exercise of his administrative power, and the Minister has authority to make Regulations for the peace, order, and good government of British subjects in the oriental country. The effect of this provision however can best be judged by the manner in which it is acted on, which will be explained in due course.

The "Municipal Regulations" for the government of a Concession or Settlement, under art. 156 of the China Order, already referred to, are from their nature free from this objection The "International Regulations" (sanitary, police, port, game, or other) which may be made, by agreement between the representatives of the foreign Powers, for the government of the subjects of those Powers, a breach of which constitutes an offence under art. 74 of the China Order, are to be made in conjunction with the Chinese authorities.

But, in spite of this, and although I think the words do not carry the meaning which has occasionally been attributed to them, and although I think that they are accurate, and that the comparison is convenient, there is no doubt that a more explicit form would have been more suited to the occasion. These same words might indeed have been used in the British Settlements Act already referred to; the authority given to the Sovereign there was the same as he has in his own right in conquered or ceded territories; but in that Act both the scope of the authority and the manner of its exercise were defined and provided for. In the case of foreign jurisdiction, as its scope varies in each country, it would be impossible to define it more fully than is, in fact, done in s. 1 of the Act; but with regard to the method

of its exercise, a direct reference to the Sovereign and the Privy Council would, I venture to think, have been more satisfactory.

Parliament over

Another question connected with the powers of Parliament in Authority of relation to exterritoriality has now to be considered. Is there British subjects any parliamentary authority over British subjects in these oriental in oriental countries, in addition to the King's authority by Order in Council? Can Parliament pass Acts with special reference to them?

There are to be found in the old cases far-reaching statements,

countries.

like that of Dr. Lushington in the Griefswald, to the effect that The Griefswald, "Parliament may legislate for British subjects anywhere": and Swab. Adm. 434. there can be little doubt that whenever in old times the question of exterritoriality was discussed, it was assumed to be bottomed in allegiance, and in the general power of legislation over British subjects, as it was said, "anywhere". Even Sir Fitz James Stephen, in his "History of the Criminal Law of England", [Vol. II, p. 58.] seems to express a similar view, when he says that the Sovereign's power of legislation in these countries is unlimited.

"

The whole question of extra-territorial laws has been fully discussed elsewhere,† and it is unnecessary to refer to it again, except + Nationality," very generally. I think that so far as it affects our present subject, Vol. II. the law is as it was stated in the preliminary propositions set out in Section I-Parliament may legislate for British subjects in ef. p. 4. these foreign countries in the same way, and subject to the same principles, as it may legislate for British subjects in other countries. How far such legislation can be tested by the Courts is an intricate question to be discussed in the next Section. But we have now to consider whether Parliament has not precluded itself from interfering with the exercise of the King's jurisdiction by the very terms of the Act which authorises its exercise by the King himself: and this apart from the initial question that the rights over his subjects have been acquired by the King in virtue of his prerogative? This question is one which does not lie within the province of the Courts to decide. It is for Parliament itself to determine whether it will keep to what may be termed the arrangement with the Sovereign.

In the case of conquered or ceded colonies, the legislative Distinction beright which belongs by prerogative to the Sovereign does not tween foreign jurisdiction and oust the jurisdiction of Parliament. Lord Mansfield said that conquered or they were the King's dominions in right of his Crown, "and ceded colonies. therefore necessarily subject to the legislative power of the

323.

Campbell v. Hall, Parliament of Great Britain" (Campbell v. Hall). But this is 20 State Trials, evidently because of the "transcendent and absolute" power of Parliament within the King's dominions. But the countries in which the rights of foreign jurisdiction exist are not within the dominions, and therefore the same principle does not apply. I am disposed to think that Parliament has always, and will always, respect what I have called the arrangement. All the details of the Foreign Jurisdiction Act are based on the same principle of sanctioning the issue of Orders in Council by the King, and not of direct legislation. Thus, the 6th section provides for sending persons charged with offences for trial to a British possession: but it does not expressly so legislate, only conferring a power on the King to authorise by Order in Council the Consular Court to send the prisoner for trial, and the Colonial Court to hold the trial. And the same is true of the 5th section, which enables the King to apply certain specified statutes to the foreign countries in question and of the 7th, which sanctions deportation to colonies to be specified by Order as places where punishment may be inflicted.

Statutes containing sections extending them to foreign jurisdiction.

44 & 45 Vict.c.69.

47& 48 Vict. c. 31.

53 & 54 Vict.c.27. 57&58 Vict. c. 60.

48 & 49 Vict. c. 49.

There are a few instances of direct legislation for subjects in these countries. But in these Acts the same principle has usually been adopted, of sanctioning their extension by the King by Order in Council. They are the following:-

The Fugitive Offenders Act, 1881: by s. 36; the Removal of Prisoners and Criminal Lunatics Act, 1884: by s. 15; the Colonial Courts of Admiralty Act, 1890: by s. 12; and

The Merchant Shipping Act, 1894: by s. 88, which enables ports of registry to be created in these countries for British ships: and also by s. 737, which allows officers to be appointed to perform the functions of consular officers under the Act, in places in oriental countries where there is no such officer.

The exceptions are the Submarine Telegraph Act, 1885, applied generally to all places where the King has jurisdiction, 52&53 Vict.c. 52. by s. 11; the Official Secrets Act, 1889, applied to British officers and subjects everywhere, by s. 6 (1); and the Regimental Debts 56&57 Vict. c. 5. Act, 1893, which is applied directly by s. 30 (3). These Acts are however of a more general nature than the others.

55 & 56 Vict. c. 6.

The provision referring to foreign jurisdiction in s. 3 of the Colonial Probates Act, 1892, operates only in the United Kingdom.