V The Foreign Jurisdiction Act. THESE preliminary considerations disposed of, it will now be convenient to consider the remaining provisions of the Foreign Jurisdiction Act, 1890-53 & 54 Vict. c. 37-by which the three existing statutes dealing with the subject were consolidated and repealed. Preamble, and Section 1. An Act to consolidate the Foreign Jurisdiction Acts. Whereas by treaty, capitulation, grant, usage, sufferance, and other lawful means, Her Majesty the Queen has jurisdiction within divers foreign countries, and it is expedient to consolidate the Acts relating to the exercise of Her Majesty's jurisdiction out of her dominions: be it therefore enacted: 1. It is and shall be lawful for Her Majesty the Queen to Exercise of hold, exercise, and enjoy any jurisdiction which Her Majesty jurisdiction in foreign country. now has or may at any time hereafter have within a foreign country in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory. These provisions have already been fully considered. Section 2. 2. Where a foreign country is not subject to any government Exercise of from whom Her Majesty the Queen might obtain jurisdiction jurisdiction over British subjects in the manner recited by this Act, Her Majesty shall by virtue in countries of this Act have jurisdiction over Her Majesty's subjects for without regular the time being resident in or resorting to that country, and governments. that jurisdiction shall be jurisdiction of Her Majesty in a foreign country within the meaning of the other provisions of this Act. This section has also been fully considered. It will, however, be convenient here briefly to consider the provisions of ss. 6 and 7 of the Pacific Islanders Protection (Amendment) Act, 1875,- 38 & 39 Vict. which covers the same ground so far as the Pacific Islands are “. 51. concerned. Pacific Islanders 38 & 39 Vict. c. 51. Power for Her Ocean. High Commissioner. 6. It shall be lawful for Her Majesty to Majesty to exer- exercise power and jurisdiction over her cise jurisdiction over British sub- subjects within any islands and places in jects in islands the Pacific Ocean not being within Her of the Pacific Majesty's Dominions, nor within the jurisdiction of any civilized Power, in the same and as ample a manner as if such power or jurisdiction had been acquired by the cession or conquest of territory, and by Order in Council to create and constitute the office of High Commissioner in, over, and for such islands and places, or some of them, and by the same or any other Order in Council to confer upon such High Commissioner power and authority, in her name and on her behalf, to make regulations for the government of her subjects in such islands and places, and to impose penalties, forfeitures, or imprisonments for the breach of such regulations. Power to Her Majesty's to erect for British sub- islands of the It shall be lawful for Her Majesty, by Order in Council, to create a Court of Justice with civil, criminal, . . .† jurisdiction over Her Majesty's subjects within the islands and places to which the authority of the said High Commissioner shall extend, and with power to take cognizance of all crimes and offences committed by Her Majesty's subjects within any of the said islands and places, or upon the sea, or in any haven, river, creek, or place within the jurisdiction of the Admiralty; and Her Majesty may, by Order in Council, from time to time direct that all the powers and jurisdiction aforesaid, or any part thereof, shall be vested in and may be exercised by the Court of any British Colony designated in such Order concurrently with the High Commissioner's Court or otherwise, and may provide for the transmission of offenders to any such Colony for trial and punishment, and for the admission in evidence on such trial of the depositions of witnesses taken in such islands and places as aforesaid, and for all other matters necessary for carrying out the provisions of such Order in Council, [t" admiralty jurisdiction," rep. 53 & 54 Vict. c. 27, s. 18.] Power to make It shall also be lawful for Her Majesty, The person for the time being lawfully acting in the Pacific Islanders capacity of High Commissioner, and any Deputy Commis- Protection Act. sioner duly appointed and empowered under the provisions of any such Order in Council as aforesaid and acting under the directions of the High Commissioner, shall have and may exercise and perform any power, authority, jurisdiction, and duty vested in or imposed upon any British consular officer by the principal Act or by any other Act having reference to such consular officers, passed either before or after the passing of this Act; and every such Act shall be construed as if the said High Commissioner and Deputy Commissioner were named therein in addition to a British consular officer. of tribes. Saving of rights 7. Nothing herein or in any such Order Amendment of 8. Whereas by reason of the cession to 36 Vict. c. 19]:- Subject to the provisions of any Act or Ordinance passed Pacific Islanders The difference of wording between the provisions of these Comparison of sections and of s. 2 of the Act of 1890, will be noticed. The Act with Foreign words corresponding to "a foreign country not subject to any Jurisdiction Act. government from whom His Majesty the King might obtain jurisdiction", of the Act of 1890, are, in the Pacific Islands Act, "any Validity of acts done in pursuance of jurisdiction. Recognition of maxim locus regit actum. islands and places in the Pacific Ocean not being within His Majesty's dominions, nor within the jurisdiction of any civilized Power". The special feature of this Act is the creation of an officer, the High Commissioner, to administer the jurisdiction. The King is empowered to create this office, and to confer on the Commissioner the power to make regulations for the government of British subjects in these islands and places. The question is almost academic: but the combined effect of the two enactments must be considered. As general provisions of a later Act do not repeal special provisions already in existence, the Act of 1875, remains intact. But it would seem as if the Act of 1890 had added to the earlier Act the recognition of the right of the chiefs to a special treaty on the same terms as those concluded with the African tribes, when they have established their right to be recognised as such. There is indeed a saving provision in s. 7, disclaiming any assumption of dominion or sovereignty over the islands, or any derogation from the rights of the chiefs or rulers to such sovereignty or dominion. Section 3. 3. Every act and thing done in pursuance of any jurisdiction of Her Majesty in a foreign country shall be as valid as if it had been done according to the local law then in force in that country. This section is based on the maxim locus regit actum, and brings all acts done in pursuance of the jurisdiction into line. with the general law. It applies, in the first place, to all official and judicial acts done in the foreign country by the King's officers and Judges: the point which the section apparently aims at being the settlement of any doubts which might arise in other Courts with regard to the validity of these acts, as not having been done in accordance with the local law. Indeed in s. 2 of Provision in the the Act of 1843, the corresponding section was expressly so drafted. It provided that any act done in pursuance of the jurisdiction, should, "in all Courts ecclesiastical and temporal and elsewhere within Her Majesty's dominions, be and be deemed and adjudged to be, in all cases and to all intents and purposes whatsoever, as valid and effectual as though the same had been done according to the local law then in force within such" foreign country. old Act. Cardinal princi ple involved in the section. But the recognition of this principle involves also the recognition of the cardinal principle of the subject, that the constitutional authority of the Sovereign of the foreign country remains intact: that the legislative origin of English law, or of such other law cf. p. 6. as the King declares shall be in force, is that Sovereign: that the Consular Courts form part of his system of judicature: and that the officers and Judges appointed by the King are in fact official and judicial authorities of that Sovereign. In the case already cited, Secretary of State for Foreign Affairs v. Charles- Sec. of State v. worth, Pilling & Co., the Judicial Committee throughout their 1901, A.C. 373. judgment used the term "Zanzibar Court" when referring to the Court established by Order in Council. Charlesworth, must act as if it country; From this it also follows that, in the absence of any express Consular Court direction, the King's Court must act as a Court would act if it were a Court of had been created by the Sovereign of the country. Thus, as the oriental was pointed out in the Zanzibar case, the Court will take judicial notice of the laws of that country. There is, it is true, an assumption that the rule on this point is identical with the rule of the English Courts; but if an opposite practice prevailed, and the Zanzibar rule had been that the laws had to be proved, that practice would presumably have been followed. such. Finally, it follows further, that the King's Courts are, quoad and be treated as British Courts, foreign and not colonial Courts. At the present time I doubt if anything of practical importance turns on this. But if, in the future, the judge-made law were to be modified in the direction of affording more recognition to colonial than to foreign judgments, the judgments of the Consular Courts would remain foreign judgments. If, however, the question were to be dealt with by statute, the case would probably be specially provided for, as was done in the case of probates coming from these Courts, by s. 3 of the Colonial Probates Act, 1892. Section 4. 55 & 56 Vict. c. 6. cf. p. 26. 4. If in any proceeding, civil or criminal, in a Court in Evidence as to Her Majesty's dominions or held under the authority of Her existence or Majesty, any question arises as to the existence or extent of extent of jurisdiction in foreign any jurisdiction of Her Majesty in a foreign country, a Secrecountry. tary of State shall, on the application of the Court, send to the Court within a reasonable time his decision on the question, and his decision shall for the purposes of the proceeding be final. (2) The Court shall send to the Secretary of State, in a document under the seal of the Court, or signed by a Judge of the Court, questions framed so as properly to raise the question, and sufficient answers to those questions shall be |