V

The Foreign Furisdiction 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 c. 37—by which the three existing statutes dealing with the subject were consolidated and repealed.

Preainble, 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 l'ict. which covers the same ground so far as the Pacific Islands are 6.51. concerned.

c

Pacific Islanders
Protection Act.

38 E 39 Vict. c. 51.

Power for Her 6. It shall be lawful for Her Majesty to
Majesty to exer-
cise jurisdiction

exercise power and jurisdiction over her 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 jurisOcean. High diction of any civilized Power, in the same Commissioner.

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 It shall be lawful for Her Majesty, by Majesty's to erect Order in Council, to create a Court of Justice a Court of Justice for British sub with civil, criminal, . . .f jurisdiction over jects in the Her Majesty's subjects within the islands and islands of the places to which the authority of the said Pacific.

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 atoresaid, 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. 6, 27, s. 18.] Power to make It shall also be lawful for Her Majesty, Ordinances.

by any Order or Orders in Council, from time to time to ordain for the government of Her Majesty's subjects, being within such islands and places, any law or ordinance which to Her Majesty in Council may seem meet, as fully and effectually as any such law or ordinance could be made by Her Majesty in Council for the government of Her Majesty's subjects within any territory acquired by cession or conquest.

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, autho-
rity, 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.
Saving of rights 7. Nothing herein or in any such Order
of tribes.

in Council contained shall extend or be
construed to extend to invest Her Majesty, Her Heirs
and Successors, with any claim or title whatsoever to
dominion or sovereignty over any such islands or places
as aforesaid, or to derogate from the rights of the tribes
or people inhabiting such islands or places, or of the chiefs
or rulers thereof, to such sovereignty or dominion, and a
copy of every such Order in Council shall be laid before
each House of Parliament within 30 days after the issue
thereof, unless Parliament shall not then be in session, in
which case a copy shall be laid before each House of
Parliament within 3 days after the commencement of the
next ensuing session.
Amendment of 8. Whereas by reason of the cession to
definition of

Her Majesty of the Colony of Fiji, it is
Australasian
Colonies in prin-expedient to amend the definition of Aus-
cipal Act. Fiji. tralian Colonies in the principal Act [Paci.

fic Islanders Protection Act, 1871-35 &
36 Vict. c. 19]:-

The term “Australasian Colonies " in the principal Act and this Act shall mean and include the Colony of Fiji.

Subject to the provisions of any Act or Ordinance passed by the Legislature of the Colony of Fiji, the provisions of the principal Act and this Act shall continue to apply and be deemed always to have continued to apply to natives of Fiji in like manner as if they were natives of islands in the Pacific Ocean not being in her Majesty's dominions nor within the jurisdiction of any civilized

Power. The difference of wording between the provisions of these Comparison of

Pacific Islanders 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

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 con-
cluded with the African tribes, when they have established their
right to be recognised as such. There is indeed a saving pro-
vision in s. 7, disclaiming any assumption of dominion or sove-
reignty over the islands, or any derogation from the rights of the
chiefs or rulers to such sovereignty or dominion.

Section 3. Validity of acts

3. Every act and thing done in pursuance of any jurisdicdone in pursuance tion of Her Majesty in a foreign country shall be as valid as of jurisdiction.

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 Recognition of

with the general law. It applies, in the first place, to all offimaxim locus regit cial 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 juris-
diction, 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 what-
soever, as valid and effectual as though the same had been done
according to the local law then in force within such” foreign

country.
Cardinal princi- But the recognition of this principle involves also the recogni-
ple involved in
the section. tion of the cardinal principle of the subject, that the constitutional

a

actum,

old Act.

authority of the Sovereign of the foreign country remains intact: that the legislative origin of English law, or of such other law of. 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.

Charlesworth, 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. From this it also follows that, in the absence of any express Consular Court

must act as if it 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

country ; 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.

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.

55 & 56 Vict. c. 6.

of. p. 26. Section 4.

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 jurisdic

tion in foreign any jurisdiction of Her Majesty in a foreign country, a Secre

country.
tary of State shall, on the application of the Court, send to
the Court within a reasonable time his decision on the ques-
tion, 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

such.