State Papers, Vol. CXVIII, p. 1046. The protection of native servants is, from its nature, temporary. The rights arising from it are in some cases, expressly defined: thus, by the Turkish Regulations, relative to the employment of native dragomans and cavasses in foreign Consulates, 1863-65, the number is strictly limited: and their rights are, shortly, described as follows-"Les protégés temporaires jouiront des mêmes droits que les protégés ordinaires. La protection des employés privilégiés des Consulats est individuelle, et attachée à leurs fonctions. Elle cessera en cas de décès et de cessation de ces fonctions." The regulations are explained in a subsequent circular addressed to the Turkish Governors-General, 20 December, 1865. Abd-ul-Messih v. An example of the application of English law to such protected Farra, L. R. 13 A. C. 431. persons will be found in the case of Abd-ul-Messih v. Farra, cf. Section XII. which is considered in section dealing with the law of domicil. In this connexion it is interesting to note that when the convention of protection was entered into between France and Madagascart, 17 December, 1885, the following special clause was inserted:-" Les Malgaches à l'étranger seront placés sous la protection de la France." ib., p. 1049. [.. before the Island became a Definitions. The Act does not cf. p. 10 Section 16. 16. In this Act The expression "foreign country" means any country or place out of Her Majesty's dominions: The expression "British Court in a foreign country" means any British Court having jurisdiction out of Her Majesty's dominions in pursuance of an Order in Council, whether made under any Act or otherwise: The expression "jurisdiction" includes power. It is important to notice how wide the enabling provisions of the limit the possible statute are. exercise of foreign We have already seen that it includes all forms of jurisdiction to foreign jurisdiction, whether in Protectorates or in oriental coununciviled countries. tries, and extends to the case of Cyprus. But it is most material to the subject to note that, on its civil side, it is not outside the bounds of possibility for foreign jurisdiction to be acquired in a European, or "civilised," country; and if acquired, the terms of the Foreign Jurisdiction Act, including its reference to "ceded and conquered territories," would be the sufficient and proper authority for its exercise by the King. Take the following hypothetical case. In France the Courts as a general rule refuse to entertain civil suits between foreigners: they are remitted to their own tribunals. Now, it is quite possible that, owing to this, and to the strict rules of jurisdiction which govern the English Courts in civil actions, a dispute between two Englishmen in Paris could not be tried either in France or in England, and that, therefore, the parties would be without redress. Such a state of things might be remedied by allowing the King's Consuls in France to act as arbitrators in such disputes, subject to the consent of the parties; and there would then be no question of treaty or of any new Act of Parliament. But the King might acquire, by treaty with the French Government, the right to give his Consuls jurisdiction in such cases over his subjects, and to this end to set up Consular Courts, with power to issue summonses to English defendants, to compel the attendance of English witnesses, and provided in fact with all the machinery necessary to an effective Court of Law. Such a Court would be validly established under the Foreign Jurisdiction Act, and its rules would be properly provided by Order in Council. Section 17. 17. The Acts mentioned in the second schedule to this Act Power to repeal may be revoked or varied by Her Majesty by Order in or vary Acts in Council. The Acts in question are— 24 & 25 Vict. c. 31: "For the prevention and punishment of offences committed by Her Majesty's subjects within certain territories adjacent to the Colony of Sierra Leone." 26 & 27 Vict. c. 35: "For the prevention and punishment of offences committed by Her Majesty's subjects in South Africa." second schedule. In that part of Section I which deals with the "Delegated of. p. 16. exercise of Foreign Jurisdiction in other parts of the Empire," the action which has been taken in connexion with the matters dealt with by these two Acts is explained. Section 18. 18. The Acts mentioned in the Third Schedule to this Act Repeal. are hereby repealed to the extent in the third column of that Schedule mentioned: Provided that, (1) Any Order in Council, commission, or instructions made or issued in pursuance of any enactment repealed by this Act, shall, if in force at the passing of this Act, continue in force, until altered or revoked by Her Majesty, as if made in Repeal. cf. p. 68. Short title. pursuance of this Act; and shall, for the purposes of this Act, be deemed to have been made or issued under and in pursuance of this Act; and (2) Any enactment, Order in Council, or document referring to any enactment repealed by this Act shall be construed to refer to the corresponding enactment of this Act. In addition to the old Foreign Jurisdiction Acts of 1843, 1865, 1866, 1875, and 1878, which were consolidated by the new Act, the following Acts are repealed: 20 & 21 Vict. c. 75:-"To confirm an Order in Council concerning the exercise of jurisdiction in matters arising within the Kingdom of Siam." 33 & 34 Vict. c. 55:-"To vest jurisdiction in matters arising within the dominions of the Kings of Siam in the Supreme Court of the Straits Settlements." 39 & 40 Vict. c. 46, ss. 4 & 6,—whereby the subjects of certain Indian Princes were made amenable to the Orders in Council relating to Zanzibar and Muscat: these sections already been referred to under s. 15. Section 19. 19. (1) This Act may be cited as the Foreign Jurisdiction Act, 1890. (2) The Acts whereof the short titles are given in the first schedule to this Act may be cited by the respective short titles given in that schedule. The Acts contained in the first schedule are those which may be applied to foreign jurisdiction by Orders in Council. They are analysed, and their application considered, in Section VII. VI General Principles governing the Exercise of Foreign The Act provides that the jurisdiction which the King has acquired in a foreign country by treaty or other lawful means, is to be exercised in the same and as ample a manner as in a conquered or ceded colony. By s. 16, "jurisdiction" includes "power." The question now to be discussed is, on the face of it, very similar to that discussed in the Section dealing with "Jurisdiction of. Section IV. by Sufferance." It is, however, of a much wider nature, and depends on different considerations. King's foreign for the sake of The King's power and jurisdiction is three-fold: legislative, Three-fold administrative, judicial. In the United Kingdom this three-fold nature of the power is exercised in conjunction with Parliament, by means of jurisdiction. Secretaries of State, and through the Judges and the House of Lords. In ceded coloniest it is exercised in conjunction with t[The term "ceded colony", the Privy Council, by means of representatives or agents, and is used throughthrough the colonial Judges and with the advice of the Judicial out this Section Committee. In countries where the King has foreign jurisdiction brevity.] the Act assumes that he has this same three-fold power; it is, therefore, if the assumption is accurate, to be exercised, for legislation, in conjunction with the Privy Council: for executive action, by means of representatives or agents: and in administering justice, through specially appointed Judges and with the advice of the Judicial Committee. The exercise of foreign jurisdiction must, therefore, be separately considered in its three aspects-legislative, executive, and judicial. There are, however, some general questions which must be disposed of before we deal with the details and manner of its exercise. The first of these questions is of paramount importance--Has the King in fact this three-fold power in foreign jurisdiction countries: and, if so, whence does he derive such extensive jurisdiction? The statute contemplates the full and ample exercise of sovereignty in the foreign country: but in foreign jurisdiction, as distinct from protected countries, the exercise can never be other than partial, for the treaty grant is itself partial, even when supplemented by sufferance. In the first place, it cannot be too often insisted on that the Foreign Jurisdiction Act covers all forms of jurisdiction acquired in foreign countries, from the highest, which is involved in a g. p. 9. Protectorate, to the narrowest. In what we call for convenience "Foreign Jurisdiction ", which stands for the exercise of consular jurisdiction in oriental countries where the sovereignty still of. Note on the remains independent, subject only to the exercise of the rights of exterritoriality, the jurisdiction is purely personal, and with cer- cf. p. 10. tain small exceptions, is limited to British subjects. Muscat case, p. 9. The three-fold power exists even though the area The question, therefore, must be put in this form-Whence does the King derive such extensive powers in connexion with of its exercise is this purely personal jurisdiction over his subjects? and if we turn, sonal jurisdiction as we must, to the treaties supplemented by sufferance, it over subjects. limited to a per Protectorates and is not easy in all cases to find the answer. Very rarely does the treaty run in so simple a form as this-" Jurisdiction over British subjects is hereby granted to the King of England". The Corean treaty is, I think, the only example of "jurisdiction over the persons and property of British subjects" being granted in general terms. In the treaties entered into with native tribes, the form indeed is usually wider. Thus, in the agreement with the Barolongs, the Chief says "I give the Queen to rule in my country over white and black men". But I believe, though I hesitate to express the opinion positively, that all the tribes with which treaties were concluded, have now become merged into Protectorates.* The subject might, therefore, be broadly divided into two Foreign Jurisdic heads-Protectorates, and countries where Consular Jurisdiction tion Countries. Lists of Protectorates, and Foreign Jurisdiction Countries. The list of Protectorates given in the British Protectorates Neutrality Orders in Council, 24th October, and 14th November, 1904, is as follows: Together with any protected Islands and Territories within the limits of the Pacific Order in Council, 1893. This list is presumably exhaustive, and therefore warrants the statement in the text that a hard and fast line has now been drawn between Protectorates and Consular Jurisdiction Countries. The list of Foreign Jurisdiction Orders in Council referred to in the Foreign Jurisdiction Neutrality Order in Council, 24th October, 1904, and which also is probably exhaustive, is as follows: Muscat (1867). Morocco (1889). Persia-Inland (1889). Persian Coasts and Islands (1889). Zanzibar (1897). Ottoman Empire (1899). China and Corea (1904). |