Meaning of "decision" of returned by the Secretary of State to the Court, and those answers shall, on production thereof, be conclusive evidence of the matters therein contained. This section is identical with s. 3 of the Act of 1843, but is more succinctly drafted. There is, however, one new word introduced which may be productive of some difficulty. The "sufficient answers" of the Secretary of State to the questions put to him by the Court with regard to the existence or extent of the jurisdiction, are called "his decision." The Attorney General stated in the House when the Bill for Secretary of State. consolidating the law was introduced, that no changes in the law had been made: and it seems probable that the word "decision is used for convenience with reference to answers which are, by the section, declared to be "conclusive evidence of the matters therein contained." The use, however, of such an emphatic word renders it necessary to examine with some care what the question is which the Courts may submit to the Secretary of State. Here again the more elaborate wording of the old Act seems to throw Provision in s. 3 some light. It was there provided that if in any proceeding in any Court within the dominions, any issue or question of law or of fact should arise for the due determination of which it should, in the opinion of the Court, be necessary to produce evidence of the existence of any such power or jurisdiction as aforesaid, or of the extent thereof, then the question could be put by the Court to the Secretary of State, who was to return "proper and sufficient answers" thereto, which were to be "final and conclusive evidence of the several matters therein contained." of the old Act. Example of application under the Section. Harvey v. If the words of the Act of 1890 are interpreted in the clear sense of the old provision, little or no difficulty can arise as to their meaning. Thus: a question may arise in an action as to whether the acts of a certain officer, not done within the dominions, have been done in the exercise of foreign jurisdiction, and the Court may require to know whether, and to what extent, foreign jurisdiction is exercised in that country. Such a question arose in Harvey v. Fitzpatrick, where a British subject died intestate at Cape Coast Town, in Africa, leaving personalty there. The Judicial Assessor to the native Princes had taken possession of it, claiming to be the official administrator of it by usage. The intestate's father obtained letters of administration, and brought a suit against this officer for the administration of the estate. An enquiry to the Secretary of State was directed, "whether Her Majesty has at any time exercised any jurisdiction with respect to the administration of personal estates of persons dying intestate in Cape Coast Town, and if so, to what extent and in what manner and through what Court or officer such jurisdiction has been exercised." the reference to It would at first sight seem superfluous to trouble the Secretary of State with such a question: for treaties, Orders in Council, and other similar documents, are not merely available to the Court, but it is bound to take official cognizance of King's Printers' copies. But, practically, it is not difficult to imagine cases Probable object of in which such a query might be usefully and expeditiously solved the Secretary of by the Secretary of State: for example, as to the geographical State. limits within which an Order in Council applies, or as to the claim of jurisdiction actually made. Suppose, for example, it were a disputed point in a case where the cause of action arose in Canton, whether English law prevailed generally on the Shameen as a natural result from the treaty with China. This might turn on the construction of documents, and, always assuming them to be available, it is not likely that the Court would put such a question to the Secretary of State, but would interpret the documents for itself. But a point raised in a case might depend on the construction of the most-favoured-nation clause, and so involve a reference to the different treaties with other Powers: it might indeed be almost a political question. Then, quite apart from the fact that such treaties might not be available, it would be right, not only that the question should be put, but also that the Secretary of State should give an answer which would virtually amount to a "decision." Or again, where the jurisdiction claimed rests on sufferance, it seems right that the Secretary of State should state whether as a fact such jurisdiction is so claimed as alleged. Looked at in this light, the answer is the same in quality as the certificate of the Secretary of State under s. 16 (2) of the Foreign Marriage Act, 1892, as to any house being the 55 & 56 Vict. “official house" of a British Ambassador for the purpose of “. 23. solemnising marriages under that Act: or of a similar certificate under s. 3 (1) (a) of the Mail Ships Act, 1891, that the owner of 54 & 55 Vict. a ship is subsidized for the execution of any postal service within the meaning of a convention to which the Act applies. It is to be observed that it is not obligatory on the Court to C. c. 31. put the question to the Secretary of State: the words "on the The jurisdiction application of the Court" of the new Act clearly do not limit the of the Courts not discretion which was more clearly apparent in the old section. ousted. It is therefore probable that if the question whether the jurisdiction exists as alleged were purely one of construction, the Court would solve it for itself and not proceed under this provision. Such a question, for example, as the one already discussed, where the question in issue might depend on whether there was a conflict between the treaty and the Order in Council, would certainly not be referred. But in doubtful cases the query might be so worded as to raise the question whether the jurisdiction is in fact claimed, leaving open the question for the Court, whether the claim is legitimate or not. Thus: the Secretary of State might reply that the claim is made and is based on sufferance: the Court would then determine whether the claim was rightly so made. It seems improbable that it was ever intended to turn the Secretary of State into a judge, and a judge moreover whose duty it would be to decide an intricate point of law without hearing arguments on either side. A very similar point arises under s. 7 of the Naturalization Act, 1870, as to the power of the Secretary of State to grant special certificates of naturalization to persons with respect to whose right to be deemed British subjects a doubt exists, for the purpose of quieting such doubts. This provision has been discussed in another work, and the conclusion at which I have arrived is, that it was not intended to throw the burden of deciding difficult questions of fact, and perhaps of law, on the Secretary of State: questions which from their nature must inevitably be decided by the Courts. I believe that the same principle must be applicable in the case now under discussion. It might be necessary for a foreign Court to obtain similar information: and it is probable that if it were thought better to procure it through the English Courts rather than by diplomatic channels, the word "proceedings" in s. 4 would be held to be sufficiently wide to enable the English Court to whom a request was addressed under the Foreign Tribunals Evidence Act, 1856, to put the necessary question to the Secretary of State. Section 5. first schedule. 5. (1.) It shall be lawful for Her Majesty the Queen in Power to extend Council, if she thinks fit, by Order to direct that all or any of enactments in the enactments described in the first schedule to this Act, or any enactments for the time being in force amending or substituted for the same, shall extend, with or without any exceptions, adaptations, or modifications in the Order mentioned, to any foreign country in which for the time being Her Majesty has jurisdiction. (2.) Thereupon those enactments shall, to the extent of that jurisdiction, operate as if that country were a British possession, and as if Her Majesty in Council were the Legislature of that possession. The power conferred by this section on the King to extend by Order in Council certain scheduled statutes will be considered, and the effect of their extension explained, in a subsequent Section. Section 6. cf. Section VII. trial to a British 6. (1.) Where a person is charged with an offence cogniz- Power to send able by a British Court in a foreign country, any person persons charged having authority derived from Her Majesty in that behalf with offences for may, by warrant, cause the person so charged to be sent for possession. trial to any British possession for the time being appointed in that behalf by Order in Council, and upon the arrival of the person so charged in that British possession, such criminal Court of that possession as is authorized in that behalf by Order in Council, or if no Court is so authorized, the Supreme criminal Court of that possession, may cause him to be kept in safe and proper custody, and so soon as conveniently may be may inquire of, try, and determine the offence, and on conviction punish the offender according to the laws in force in that behalf within that possession in the same manner as if the offence had been committed within the jurisdiction of that criminal Court. Provided that— (a) A person so charged may, before being so sent for trial, tender for examination to a British Court in the foreign country where the offence is alleged to have been committed any competent witness whose evidence he deems material for his defence and whom he alleges himself unable to produce at the trial in the British possession: (b) In such case the British Court in the foreign country shall proceed in the examination and cross-examination of the witness as though he had been tendered at a trial before that Court, and shall cause the evidence so taken to be reduced into writing, and shall transmit to the criminal Court of the British possession by which the person charged is to be tried Power to send persons charged with offences for trial to a British possession. Summary of s. 6. a copy of the evidence, certified as correct under the seal of the Court before which the evidence was taken, or the signature of a Judge of that Court: (c) Thereupon the Court of the British possession before which the trial takes place shall allow so much of the evidence so taken as would have been admissible according to the law and practice of that Court, had the witness been produced and examined at the trial, to be read and received as legal evidence at the trial: (d) The Court of the British possession shall admit and give effect to the law by which the alleged offender would have been tried by the British Court in the foreign country in which his offence is alleged to have been committed, so far as that law relates to the criminality of the act alleged to have been committed, or the nature or degree of the offence, or the punishment thereof, if the law differs in those respects from the law in force in that British possession. (2) Nothing in this section shall alter or repeal any law, statute, or usage by virtue of which any offence committed out of Her Majesty's dominions may, irrespectively of this Act, be inquired of, tried, determined, and punished within Her Majesty's dominions, or any part thereof. This section provides for the trial in Colonies specified in that behalf by Order in Council, of persons charged with offences, who would in ordinary circumstances be tried by the Consular Courts. The order may be made by any person having authority from the King in that behalf. In the case of China, this power has been exercised by art. 50 of the China Order, the places of trial indicated being Hongkong and Mandalay. The article vests the discretion to make the order entirely in the Court which would otherwise have cognizance of the case, the cause of the transfer being expediency, as to the existence of which the Court is to decide. The Colonial Court is to have regard to the law by which the offender would have been tried in the Consular Court, so far as the criminality of the act, the nature or degree of the offence, and the punishment are concerned, if that law differs in those respects from the law administered by the Colonial Court; otherwise the trial and punishment are to be in accordance with the colonial law. There is a proviso that the evidence of witnesses for the defence may be taken before the Consular Court if the prisoner alleges that he is unable to produce them at the trial in the |