The law applied is that in force at the time the cause of action arises. Application of amending Acts. But the method usually adopted for doing this in the Order in Council differs from that used in the case of colonial constitutions. The body of English law introduced into a colony acquired by occupation, whether in virtue of the doctrine that settlers take the law of their mother-country with them, or in virtue of the express terms of the charter or other constitutional document, is the law of England as it then is: whereas in the case of the bodies of law introduced for the purpose of consular jurisdiction, it is the law of England "for the time being:" that is, the law which exists in England at the time when the cause of action arises. In the same way, s. 5 of the Principal Act contemplates, though it does not direct, the application of Acts amending the "applied Acts." This course will be found to be generally adopted. By this means the troublesome question which often arises in the colonies, whether a later amending Act is incorporated in an old Act which has been introduced is avoided: a question 52 & 53 Vict. c. 63. which is not entirely settled by s. II of the Interpretation Act, cf. Nationality," 1889: and which is not even attempted to be dealt with in the case Vol. I, p. 216. of old foreign laws which remain in force in ceded colonies. " Further rule of adaptation de rived from s. 5 (2) of Principal Act. cf. p. 23. 22 Vict. c. 20. Lastly, it may also be necessary to resort to s. 5 (2) of the Principal Act in order to find warrant for some substitutions. The meaning of this provision has already been discussed. There seems to be a practical intention which may be given to the words, the applied enactments "shall operate as if that country were a British possession," which may facilitate interpretation. It is obvious that, speaking generally, the class of Acts which it would be advantageous to extend to foreign jurisdiction are those which are applicable to, or have been extended to, the colonies. Then the Act, when applied to foreign jurisdiction, is to be construed as if the country to which it is applied were, for the purposes of construction, a British possession. To take a concrete example. The Evidence by Commission Act, 1859, provides that a Court of competent jurisdiction in the of. Section VII, A. dominions" may issue a commission to "a Court having authority Example of spe- under the Act," to take the evidence of witnesses in cases pending cial substitution, before it. By special substitution, the Supreme Consular Court tion under s. 5 (2). takes the place of a Colonial Supreme Court in s. 5, and thus and of substitu becomes "a Court having authority under the Act." The Colonial Supreme Court is, however, not mentioned in the other sections of the Act: but in virtue of this provision of the Principal Act, it is clear that the Consular Courts take the place of the Courts of competent jurisdiction in the dominions, and that they also have power to issue commissions under the Act to other Courts having authority under the Act. It may well be that this result would also be arrived at under the general substitution clause: but the text of s. 5 (2) of the Principal Act gives direct warrant for it. These principles being, as I trust, made clear, I proceed, in the next Section, to give as accurate a paraphrase as possible of both classes of the applied Acts. VII The Applied Acts. ACTS APPLIED IN VIRTUE OF SECTION 5 & SCHEDULE 1, Admiralty Offences (Colonial) Act, 1849,............p. 84. Evidence Act, 1851, ss. 7 and 11,...p. 88. Foreign Tribunals Evidence Act, 1856,...... ....p. 89. British Law Ascertainment Act, 1859,............p. 94. Foreign Law Ascertainment Act, 1861, p. 96. Conveyancing (Scotland) Act, 1874, s. 51, p. 97. Fugitive Offenders Act, 1881,....p. 98. Imp. Stats..+ Vol. I, p. 110.] Person charged offence on the sea to be dealt with as if offence committed in colonial waters. Admiralty Offences (Colonial) Act, 1849.—12 & 13 Vict. c. 96. Provisions of the Act. [applied by art. 39, China Order.] If any person within any colony charged with treason, piracy, in a colony with felony, robbery, murder, conspiracy, or other offence of what nature or kind soever, committed upon the sea, or in any place where the Admiral has jurisdiction: or if any person charged with any such offence upon the sea, or in any such place, shall be brought to trial in any colony, the Courts in the colony are to exercise the same jurisdiction as by the law of such colony they would have had if the offence had been committed upon the waters situate within the limits of such colony, and within the limits of the local jurisdiction of the criminal Courts of such colony. [s. 1] Trial of murder or manslaughter or on the sea. Where any person dies in any colony of any stroke, poisoning where death only or hurt, having been feloniously stricken, poisoned or hurt upon happens in colony the sea, or in any place where the Admiral has jurisdiction, or at any place out of such colony, the offence (whether murder or manslaughter, or of being accessory) may be tried and punished in such colony as if it had been wholly committed therein; and if any person in any colony shall be charged with any such offence in respect of the death of any person who, having been stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning or hurt upon the sea, or in any place where the Admiral has jurisdiction, the offence shall be held for the purpose of this Act to have been wholly committed upon the sea. [s. 3] Provisions of the Order in Council. "In cases of murder or manslaughter if either the death, or the criminal act which wholly or partly caused the death, happened within the jurisdiction of a Court acting under this Order, that Court shall have the like jurisdiction over any British subject who is accused either as the principal offender, or as accessory I have given the references to the "Imperial Statutes Applicable to the Colonies" of all the statutes considered in this Section, for the convenience of those who use that book of reference. before the fact to murder, or as accessory after the fact to murder or manslaughter, as if both the criminal act and the death had happened within that jurisdiction". [art. 39, i] This provision shall be deemed to be an adaptation, for the purpose of this Order and of the Foreign Jurisdiction Act, 1890, of the Admiralty Offences (Colonial) Act, 1849, which shall apply and be administered accordingly. [art. 39, iii] Operation of the Act as applied. The use of the word "adaptation" in the third clause of art. 39, would seem to show that clause i is to be read in lieu of the Act with the usual substitutions. It is indeed an ingenious amalgamation, for the purposes of the Consular Courts, of the Act of 1849 itself, of ss. 9 and 10 of the Offences against the Person 24 & 25 Vict. Act, 1861: that is to say, of the general criminal law of England [Imp. Stats., with regard to murder and manslaughter on the high seas, with Vol. I, p. 108.] the exception of the provisions of the Merchant Shipping Act, f. p. 86. which are dealt with separately in the same article. C. 100. seems limited to If this construction is right then the application of this Act is Act as applied limited to murder and manslaughter, the other offences falling to murder and be dealt with under s. 686 of the Merchant Shipping Act, 1894, manslaughter. as applied. As I have pointed out in another book, the whole of the English law as to high sea offences is in inextricable confusion, and it is unnecessary to go into the question again. f." Nationality," Vol. II, pp. 139, et seq. Admiralty Offences (Colonial) Act, 1860.-23 & 24 Vict. c. 122. To enable the Legislatures of Her Majesty's possessions abroad [Imp. Stats., Vol. I, p. 112.] to make enactments similar to the enactment of the Act Ninth George the Fourth, chapter thirty-one, section eight. [applied by art. 39, China Order.] Provisions of the Act. The Act enables colonial Legislatures to pass laws similar to the Act 9 Geo. IV. c. 31, which was repealed by 24 & 25 Vict. c. 95, s. 1, and replaced by 24 & 25 Vict. c. 100, S. 10. The effect of this provision is that a colonial Legislature may Colonial legisla tion in respect of provide that where any person feloniously stricken, poisoned or acts in the colony otherwise hurt at any place within the colony, shall die of such resulting in death out of colony. stroke, poisoning or hurt upon the sea or at any place out of the cf. pp. 23, 55. colony, the offence, (whether murder or manslaughter, or of being accessory) may be tried and punished in the colony as if it had been committed wholly within the colony. This statute is supplementary to the Act of 1849, which deals by Imperial legislation with the complicated question of jurisdiction arising when the stroke happens in one place and the consequences of the stroke in another. For reasons which it is not now necessary to enquire into, it was thought advisable to allow colonial Legislatures to pass laws on the same lines, which, being extra-territorial, they could not do without the sanction of the Imperial Parliament. Provisions of the Order in Council. These are the same as in the case of the preceding statute. Operation of the Act as applied. It is probable that the reason why the Act is included among the applied Acts, is to sanction similar extra-territorial legislation for the Consular Courts by the King in Council, who is, by s. 5 (2) of the Principal Act, made equivalent to the Legislature of countries where foreign jurisdiction is exercised. It is, therefore, in virtue of the application of this Act, that the variations of the previous Act are warranted. [Imp. Stats Merchant Shipping Act, 1894: Part XIII.-57 &158 Vict. c. 60. [in lieu of Merchant Shipping Act, 1854: Part X, and 30 & 31 Vict. c. 124, s. 11.] [applied by art. 39, China Order.] * In the Orders in Council for Siam and Turkey, s. 686 of the Merchant Shipping Act, 1894, is expressly referred to in the corresponding articles dealing with "Admiralty Offences, &c.", instead of Part XIII. It would seem however as if the result were the same so far as the remaining sections of that Part are concerned, for they are not otherwise expressly extended, although the power to do so exists, Part XIII being included in the 1st schedule of the Principal Act. |