was entered into, and that the same difficulty arises with regard to it. But the solution of the difficulty is a practical one. The impossibility of applying the presumption makes it imperative on the Court to ascertain the intention of the parties, and to draw the most legitimate inferences possible in the circumstances. Inferences must be drawn from facts which would possibly not in ordinary circumstances be considered as entitled to so much weight. They assume indeed a greater importance because of the peculiar circumstances of the case, which are in fact well known to both parties who enter into the contract. Such facts as these might become all-important instead of material only: the language in which the contract is made, the form of it, the nationality of the person for whom the contract is to be performed, the part of the Settlement where it is to be performed, as in the case of a bill accepted payable at a French bank: and so on. And so with regard to the form of the contract, the same considerations would appear to settle the difficulties which arise. If the intention of the parties is that the contract, entered into in Shanghai, should be governed by the law of France, for example, it would be considered as a French contract, and the form of it would have to be in accordance with French law. This seems to be the result of Mr. Justice Pearson's decision in re Marseilles Extension Railway Company, Smallpage's case. In this connexion of course the application of the Statute of Frauds needs consideration. It was held in Leroux v. Brown, that s. 4 of the Statute of Frauds, which requires certain contracts to be in writing, is a mere rule of procedure, and therefore a question appertaining to the lex fori. Without going into the difficulties suggested by this rule, it seems clear that an action cannot be maintained in the Consular Court on a parol agreement to which an Englishman is a party, which is not to be performed within one year, although it is valid by the law of the other party's nationality.* Assuming this decision to be good law, the result is to create an exception to the statement already made, that as all disputes are referred for settlement to the Court of the defendant's nationality, each man's conduct in this mixed community must be governed by his own law. In cases of contract entered into * The adverse comments which have been made upon this decision are considered in my book on "Foreign Judgments," at p. 200. between foreigners and Englishmen it is advisable, in view of a possible action to be subsequently brought in the English Court, to act upon the provisions of the fourth section of the Statute of Frauds. Limitation. The rule that the lex fori governs all questions of procedure in Statutes of the Consular Court is also important as regards dealings between foreigners and British subjects in connexion with the Statutes of Limitation. If an action is brought on a contract by an Englishman against a Frenchman in the French Court, the French period of limitation will be adopted; but if the suit is brought by the Frenchman against the Englishman on the same contract in the English Court, the English period will be adopted. But in this respect exterritoriality does not introduce any complication into the general law, for the same thing would result if the French Court sued in were in France, and the English Court in England, instead of both of them being in an oriental country. Torts. The question takes a somewhat different form in the case of torts committed in the oriental country; and the application of general principles is made easier by the fact that under the system of foreign jurisdiction the law applicable to any given act, by which its wrongfulness is to be determined, depends entirely on the nationality of the person who commits it. act. With regard to actions in the British Courts, the rule, arbitrary Rule of double but well-established, is that the act must be wrongful by the law Wrongfulness of of the place where it was committed (the M. Moxham), and also the M. Moxham, by English law (the Halley): or rather, by the law administered IP.D. 107. the Halley, by the British Court in which the action is brought. The first L.R. 2 P.C. 198. part of the rule is of course the recognition of the maxim locus regit actum. When the act is committed by a foreigner in the oriental country, although the locus is, for example, China, the lex loci is the law of the defendant's nationality. At this point, however, an important question arising out of the fundamental principles of the subject must be considered. Seeing that all the powers of the Eastern Sovereign which are Wrongfulness of not surrendered by treaty, or are not usurped by sufferance, oriental country. act by law of remain in and can be exercised by him in respect even of f. p. 8. Carr v. Fracis f. p. 8. cf. p. 15. foreigners present in his empire: seeing also that the whole area of law is not necessarily covered either by treaty or sufferance, it follows that there may be some acts whose wrongfulness must be determined by the law of the oriental country itself. The Muscat case affords the best illustration that could be found of this principle. The wrongfulness of the act of the shipowners, and the rightfulness of the seizure by the British naval officer, were determined by a judgment of a Muscat Court which had been approved and adopted by the Sultan himself. The ship had been seized for a violation of a proclamation of the Sultan prohibiting the transit through his territorial waters of ships laden with ammunition for Persia. The House of Lords held that as the seizure was authorised by the law of Muscat, ascertained in the manner explained above, no action would lie in the English Courts, for the law of the place where the alleged wrongful act was committed pronounced it to be not wrongful. The importance of the decision becomes manifest when it is considered in relation to the act of the shipowners. This was wrongful by the law of Muscat where it was committed, and the House of Lords decided that no difference in this respect existed between an oriental and a western country. Lord Halsbury put the point shortly thus: "The law of the Sultan of Muscat is his will—stet pro ratione voluntas. In my opinion no British tribunal is competent to go behind the Sultan's declaration. A serious question of policy is involved, and British tribunals cannot decide as against the Sultan what is the law of the Sultan's country". This point lies outside the other difficulties which arise in connexion with this case which I have already pointed out. But, with great deference, it shows how exceedingly important the omission was to consider the exterritorial relations which exist under the treaty with the Sultan of Muscat. Rule of double The rule as to double wrongfulness referred to above, would seem wrongfulness not applicable to to find no application in the Consular Courts. If we take the Consular Courts. simple case of an assault by an Englishman on a Frenchman in Canton, a suit brought in the English Court there, and the plea of self defence raised. It might perhaps be suggested that as the law for Frenchmen in China is French law, the act must be wrongful both by French and English law in accordance with this rule. But, as we have seen, French law can be said to be applicable to Frenchmen in China only in cases of disputes between Frenchmen, English law to Englishmen only in cases of disputes between Englishmen. Directly we get to mixed disputes the law applicable is that of the defendant's nationality. In the case of assault the maxim locus regit actum does not regard the nationality of the person injured, but only that of the wrongdoer. There is therefore no room for the application of the rule, and the wrongfulness of the act will be decided solely by English law. Judgments of Consular Courts. The judgments of the British Consular Courts rank in the same Action on judgway as foreign judgments when they are sued on, or pleaded, in Consular Courts; ments of English the Courts in England. Tapp v. Jones, a judgment of the Tapp v. Jones, L.R. 9 C.P. 418. Supreme Court of Shanghai; Grant v. Easton, a judgment of the Grant v. Easton, Vice-Consular Court at Cairo: an application for summary judg- 13 Q.B.D. 302. ment under Order XIV.; Barber v. Lamb, a judgment recovered Barber v. Lamb, 29 L.J. C.P. 234. in the Consular Court at Constantinople: held to be a bar to an action in England on the same cause of action. Courts and of foreign Dent Dent v. Smith, Consular Courts. And in the same way the judgments of the Consular of foreign Powers will be treated as foreign judgments. v. Smith, a judgment of the Russian Consular Court at Constan- L.R. 4 Q.B. 414. tinople; Messina v. Petrococchino, a judgment of the Greek Court Messina v. Petrococchino, L.R. at Constantinople. 4 P.C. 144. "That the Ottoman Porte," said Sir Robert Phillimore, in this last case, "has given to the Christian Powers of Europe authority to administer justice to their own subjects according to their own laws within its dominions is a fact publici juris, which their Lordships are not now called upon for the first time to take cognizance of... It would be strange, indeed, if it had been otherwise, inasmuch as Her Majesty has established a Supreme Consular Court at Constantinople and Provincial Courts, with rules for the exercise of civil and criminal jurisdiction . . . Judicial cognizance being, therefore, taken by their Lordships of the fact that a Greek tribunal, capable of exercising jurisdiction in this case, existed at Constantinople, it is the duty of their Lordships to apply to such tribunal the ordinary principles which regulate the reception of the judgment of a foreign tribunal by other Courts." cf. p. 128. cf. p. 131. clauses of a statute. XIV The Operation of Right-conferring Statutes IN THAT part of Section VIII-The Exercise of the Legislative Power-in which the criminal jurisdiction conferred on the Consular Courts was considered, there is one group of offences which is treated independently of the general application of the criminal law by art. 35. This group is headed "Offences in relation to Copyright, Inventions, Trade-Marks and Designs:" the effect of art. 69 of the Order being to bring the penal clauses of the English Acts relating to these subjects specially within the consular jurisdiction. Some of the consequences of this extension have already been suggested. But it must be obvious that there are other questions involved in it, the answers to which are not Effect of special too readily forthcoming. First: Why was it necessary to make extension of penal special reference to the penal clauses of these statutes, for the whole of the criminal law of England had already been extended? This question should be put in a larger manner-Do all statutes which create special offences require special extension? Or in yet another way-Docs the expression "the criminal law of England," which is extended by art. 35 of the Order, refer only to the Criminal Law Consolidation Acts of 1861, together with such common law offences as lie outside the provisions of those statutes? An affirmative answer to this last question appears to lie on the surface, because the criminal law as generally understood punishes the infringement of those rights which all alike possess at common law, and which the treaties guarantee the enjoyment of in the oriental country, by English law in so far as British offenders are concerned. These rights are protected by the Larceny Act, the Malicious Damage Act, the Forgery Act, the Coinage Offences Act, and the Offences against the Person Act of 1861 [24 & 25 Vict. cc. 96 to 100], supplemented by the Accessories. and Abettors Act, [c. 94]. |