is exercised. But there is no necessity for so doing, because in practice both are treated by the Foreign Office in the same way no difference of principle being observable in the Orders in Council which are issued in respect of them, though there are naturally many differences of detail. Of this the Neutrality Orders in Council of 1904 are a sufficient example.

This digression serves to emphasise the importance of giving the correct answer to the question just propounded.

the treaty grant

Turning to the treaties, we find them almost invariably Common form of drafted in a form which appears to be no more than a grant examined. of the right to exercise judicial power in cases in which the King's subjects have disputes among themselves, or in which complaints are made against them: in other words, it would seem to be of "Consular Jurisdiction" pure and simple; and this has been the basis of the discussions in the foregoing Sections. We have now to consider whether the three-fold power which is in fact claimed and exercised can be derived from the grant. I think it may be justified.

Sufferance, as we shall presently see, has probably added a f. Section X. jurisdiction affecting foreigners: and further, may have to be appealed to in justification of some of the details which the treaty grant can hardly be said to warrant. But we are now concerned with the larger question, how the exercise of the other sovereign powers can be derived from a grant which, in its most common

form, runs as follows:-" all questions in regard to rights, whether cf. art. 15 of the of property or persons, arising between British subjects, shall be treaty with China. subject to the jurisdiction of the British authorities."

power.

As I have just said, on the face of them these words seem to The exercise of legislative power contemplate only the exercise of judicial powers. It does not flows from the appear, however, to involve a too great straining of these words, grant of judicial to hold that the jurisdiction, to which all questions in regard to these rights are made subject, must include the right to decide, legislatively, as distinct from judicially, what those rights are: for that is one of the questions which arises in regard to them. cf. Section X. But the broad rule of interpretation of treaties, which in due course we shall consider, may also be appealed to in order to justify this construction. If the grant were to be construed to be one of trial of disputes only, the law to be applied would of necessity be that of the oriental country; and this, it may be safely asserted, is never, in the absence of express stipulation,

Criminal jurisdic

tion.

Power to erect Courts and determine their constitution.

exp. Carew,

1897, A.C. 719.

cf. p. 61.

The limitation of the treaty grant not to be lost sight of.

of the cases cited on pp. 35, 36.

contemplated by the contracting parties. The point involved in this discussion may be put shortly thus-Is a reference to the decision of disputes "by British law" essential to the application of that law, or can it be inferred as above suggested? The answer is, I think, that it is not essential.

The same interpretation must be put on the grant of criminal jurisdiction over subjects. But here it will be found that in many cases the law by which the criminality of the act is to be decided, and hence the right of the injured party determined, is expressly provided in the treaty.

The power to declare what the rights are is, therefore, I think, to be derived from such a grant as the one referred to above, as well as the right to determine all disputes in connexion with them.

The grant of the judicial power carries with it also the right to erect Courts for the purpose, and to determine their constitution.

This latter point was discussed in ex parte Carew, where it was held that the constitution of the Consular Court-in the instance, trial by a jury of five-was absolutely in the discretion of the Sovereign in virtue of the treaty grant. The question was argued on the ground that, by the law of England, no British subject can be tried and convicted of any capital or other felony except by a verdict of twelve men. The decision of the Judicial Committee may also, therefore, be taken to be an illustration of the rule laid down in s. 12 (2) of the Foreign Jurisdiction Act, that an Order in Council is not to be held void on account of repugnancy to the law of Engand.

It will be understood that the exercise of the right of legislation is, in the same way as the right of judicial decision, limited by the extent of the treaty grant; and that, in accordance with principles already established, the general nature of the provisions of the Foreign Jurisdiction Act cannot be appealed to to warrant any larger exercise of this power. This consideration does, I think, remove the difficulties in the way of tracing the right of executive action to the same words in the treaty, which undoubtThe warrant for edly exist. Executive action generally, though it comes within the terms of the Act, could not find its warrant in a treaty grant such as the one given above. But it is included, as the right of legislative action is, in the jurisdiction to which all questions in regard to the rights of property or person are made subject; and,

executive action

is also to be derived from the

treaty grant.

so far as it may be necessary to the settlement of such questions, administrative or executive action is justified. It will be found, when we come to deal with the "Exercise of the Administrative of. Section IX. Power", that such action as is authorised by the Order in Council

is very limited, and may be assumed to fall, or to be intended to fall, within the terms of the treaty grant.

and construction

tion countries.

The exercise of the King's jurisdiction in its three branches Interpretation being thus justified, we must now consider another important of laws passed for preliminary point which arises in connexion with the exercise of foreign jurisdicthe right of legislation, namely, interpretation or construction; for the method adopted for exercising this right involves a practical question of considerable difficulty.

There has recently been an example of direct legislation by Example of direct. Order in Council in the case of neutrality: but the more com. legislation. mon form in which the right of legislation is exercised is by applying the laws of this country to these foreign communities,

in so far as it may be desirable and applicable, either specially Common method or collectively. For example: an isolated statute, such as the of legislating. Public Authorities Protection Act, 1893, may be specially applied: 56 & 57 Vict. or a group of enactments, or a body of law, such as the laws c. 61. applicable to probates and letters of administration: or again, a still larger body of law, such as the whole of the criminal law of England, or, as in the case of Zanzibar, of the law of British India, may be applied generally.* Such a simple and expeditious method of legislation is inevitable and useful: but it brings in its train a most complicated question of interpretation; for it is obvious, that to make the necessary changes in the terminology Broad principles of all the statutes would involve a great amount of labour, and governing adaptathe result could hardly be expected to be exact in all cases. terminology is not the only trouble. To meet these difficulties certain broad principles of adaptation have been established. First: by s. 5 of the Principal Act,f the King may by Order in ie. the Foreign Jurisdiction Act, Council direct that all or any of the Acts set out in the first 1890.

And

* More accurately, certain specified enactments of the Governor-General of India in Council, and of the Governor of Bombay in Council, so far as circumstances admit; and so far as they are inapplicable, the common and statute law of England in force at the commencement of the Order; also, future enactments of the Governor-General of India in Council, or of the Governor of Bombay in Council, at such time as the Secretary of State may fix (Zanzibar Order in Council, 1897, art. 11).

tion of laws.

The "Applied
Acts."

schedule, "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 His Majesty has jurisdiction. Thereupon those enactments shall, to the extent of the jurisdiction, operate as if that country were a British possession, and as if His Majesty in Council were the Legislature of that possession."

These Acts, some twelve in number, will be for convenience termed the "Applied Acts": and it will be seen, when we come

f. Section VII, A. to consider them in their applied form, that some of the necessary substitutions in the wording of their provisions have been made.

Acts extended by

sections in the

Secondly: there is a smaller group of Acts which contain Acts themselves. sections applying them to foreign jurisdiction when an Order in cf. p. 26. Council is issued for that purpose. The main difference between cf. Section VII, B. these two groups is that the modifications necessary to make

cf. China Order,

art. 31.

Principle governing operation of Applied Acts.

General principle of application

66 as far as circumstances admit."

them fit the new conditions to which they are to apply are, in the first group, to be determined by Order in Council, in the second, are left to be dealt with by the general rules of adaptation.

Thirdly: the broad principle is laid down in the Orders in Council governing the operation of applied Acts, whether they are applied "by virtue of any Imperial Act or of the Order or otherwise," that all Acts, laws, orders, forms, regulations, or procedure so applied "may be construed or used with such alterations and adaptations not affecting the substance as may be necessary having regard to local circumstances." In the case of Courts or officers, the substitution is to be of Courts and officers having the like or analogous functions, or by a specially designated officer. And in the case of difficulty in the application, a Secretary of State may direct "by, to, or before whom and in what manner anything is to be done," the Act being to be construed accordingly.

Finally there is the further rule which is generally laid down specifically in all cases where an entire body of law is introduced, such as the criminal, or the Admiralty, that it is to be applied "as far as circumstances admit."

These are the machinery clauses by which existing legislation can be made to work in a country subject to foreign jurisdiction, each contributing its own special facility. What one fails to

accomplish may perhaps be effected by means of one of the others: for, clearly, when an Act has been applied, all of the principles of interpretation must operate upon it if and when necessary. Yet, even then, it can hardly be said that these provisions contain the master-key for unlocking all difficulties of interpretation. Special substitutions, from their nature, can only be Limited possibilities of special resorted to when they can be foreseen: for example, where it is substitutions. necessary to prescribe that some special Court or officer shall perform the functions of some Court or officer in the dominions mentioned in the Act in question. In spite of the provision with regard to analogous Courts and officers in the Orders in Council referred to above, it would seem that such substitutions, if not essential, are certainly expedient, in view of the question of jurisdiction which is involved. But it is manifestly impossible, apart from the labour involved, to indicate every change of language which is necessary to the application: or even to indicate what parts of the Act are capable of being applied. Recourse must, therefore, be had to the general adaptation clause, which enables such adaptations to be made as the circumstances of the case may require. A similar clause figures in almost every constitutional document dealing with government or jurisdiction in the different parts of the Empire. By means of it the common and the statute law of England have been introduced and made workable in occupied colonies;* subject to this rule too, foreign laws are allowed to continue in force in conquered or ceded colonies. The scope and meaning of the rule, as well as the knotty problems connected with its interpretation, have of "Nationality,** been dealt with in another book, and need not here detain us. Chap. XIV.

Vol. I,

e.g. So much of the common law and the statute law of England is in Mayor of Lyons v. force in colonies acquired by settlement as is applicable to the condition of E. I. Co. 1 Mo. the settlers, or is adapted to their new situation (Major of Lyons v. East India P.C. 175. Co., and Whicker v. Hume).

Whicker v. Hume, 7 H.L. Ca. 124.

By 9 Geo. IV. c. 83, all rules and statutes in force in England at the time of the passing of the Act, are applied to the administration of justice in the f." Nationality,'' Courts of New South Wales, as far as the same can be applied within the Vol. I, pp. 211, colony.

In Tobago, a local Act of 1841, declared that such parts of the common and statute law of England as are or shall be or become applicable and suitable to the circumstances and population of the colony, should be in force in the Island.

213.

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