(s. 684) jurisdiction over ships lying off the coast (s. 685): jurisdiction in case of offences on board ship (s. 686): jurisdiction in respect of offences committed by British seamen in foreign ports (s. 687) jurisdiction to arrest foreign ships that have occasioned damage (s. 688): the conveyance of offenders to the United Kingdom or to the colonies (s. 689): enquiries into the cause of death on board ship (s. 690): receiving depositions in evidence when a witness cannot be produced (s. 691): enforcing detention of ship under the Act (s. 692): together with other sections dealing with legal procedure. Some of the sections, e.g. s. 689, apply generally to British consular officers, and therefore do not come within the purpose of this book. Provisions of the Order in Council. By the inclusion of the Part of the Act in the schedule, it would seen as if the whole of its provisions were intended to be applied to countries where foreign jurisdiction is exercised. The Order in Council, however, contains the following provision, which, as in the case of the Admiralty Offences (Colonial) Act, 1849, it declares to be an adaptation for the purposes of the Order and of the Foreign Jurisdiction Act, 1890: "In the case of any offence committed on the high seas, or within the Admiralty jurisdiction, by any British subject on board a British ship, or on board a foreign ship to which he did not belong, the Court shall, subject to the provisions of this Order, have jurisdiction as if the offence had been committed within the jurisdiction of that Court". [art. 39, ii] Operation of the Act as applied. Art. 39 (ii) reproduces, with certain verbal alterations, s. 686 of the Act; and if the meaning of the term "adaptation" be, as above suggested, that this clause is to be read in lieu of the Act. with the usual substitutions, this is the only section of this Part of the Merchant Shipping Act which is applied to the Consular Courts. In furtherance of this view it may be pointed out that this section is the only one which is in pari materia with the other enactments applied under art. 39 of the Order, the marginal note to which is "Admiralty Offences, &c."* Sec. 686 of M.S. Act alone applied. cf. p. 12. In connexion with these three applied Acts there are two general considerations to be noted. In art. 39 (ii) of the Order, it is provided that "in cases tried under this article no different sentence can be passed from the sentence which could be passed in England if the offence were tried there." In spite of its position in the second clause, its general terms shew that this provision applies also to the first clause, which adapts the Admiralty Offences (Colonial) Acts. The expression "within the jurisdiction of the Court" used in both paragraphs of the article, is equivalent to the term "limits of the Order ". These are defined in art. 2, and include the territorial waters of China. Imp. Stats., Proof of judg ments, &c., of Consular Courts Evidence Act, 1851, ss. 7 and 11.-14 & 15 Vict. c. 90. Provisions of the Order in Council. Sections 7 and II of this Act are extended for all purposes, as if the Courts, districts and places to which this Order applies were in a British Colony. Operation of the Act as applied. By the extension of s. 7, all judgments, decrees, orders, and other judicial proceedings of the Consular Courts, and all affiin British Courts. davits, pleadings, and other legal documents filed or deposited in such Courts, may be proved in any Court, or before any person having authority to take evidence, either by examined copies, or by authenticated copies sealed with the seal of the Court, or if the Court has no seal, by the signature of the Judge, who shall attach to his signature a statement that the Court has no seal. These documents shall thereupon be admitted in evidence in every case in which the original document could have been received in evidence, without proof of the seal or signature, or of the truth of the statement attached thereto, or of the judicial character of the person appearing to have made such signature or statement. Proof of docu By the extension of s. II, the documents admissible without ments, &c., refer- proof under s. 7 in England, are equally admissible in the Consular Consular Courts. Courts. This includes, in addition to judgments and other red to in s. 7, in judicial documents, all proclamations, treaties, and other acts of state of any foreign State or British colony, and judgments, decrees, orders and other judicial documents of any foreign or colonial Court, the copy being authenticated by the seal of the foreign State or British colony, or foreign or colonial Court, or in default of such seal of the Court, by the signature of the Judge, coupled with a statement that the Court has no seal. Foreign Tribunals Evidence Act, 1856.-19 & 20 Vict. c. 113. To provide for taking evidence in Her Majesty's dominions in relation to civil and commercial matters pending before foreign tribunals. Provisions of the Act. [applied by art. 125, China Order.] [Imp. Stats., Vol. I, p. 174.] the Act to obtain commercial Where upon an application made for the purpose it appears to Application by any Court or Judge having authority under this Act, that any Courts having foreign Court to Court or Tribunal of competent jurisdiction in a foreign country, authority under before which any civil or commercial matter is pending, is evidence of witdesirous of obtaining the evidence in relation to such matter of nesses in civil or any witness within the jurisdiction of such first-mentioned Court, matters. an order for such examination upon oath, interrogatories, or otherwise may be made. The order (or any subsequent order) may command the attendance of the witness, or the production of any specified writings or other documents, and may give all reasonable and just directions as to the time, place and manner of such examination, and all other matters connected therewith. The order may be enforced in the same way as an order made by such Court in a cause depending before it. [s. 1] A certificate under the hand of the ambassador or other diplomatic agent of the foreign country, or where there is no such agent, then of the Consul General or Consul of the country in London, that the matter is a civil or commercial matter pending before the Court, and that the Court is desirous of having the evidence, shall be evidence of the matters so certified: but other evidence is admissible. [s. 2] minister oath : The person authorised to take the examination of the witness Authority to adby an order made under this Act may take such examination on perjury. "Authorised Courts." Consular Courts may take evi Courts. oath. A witness wilfully and corruptly giving false evidence is to be deemed guilty of perjury. [s. 3] The witness is entitled to the like conduct money, and payment for expenses and loss of time, as upon attendance at a trial. [s. 4] A witness may refuse to answer questions tending to criminate himself, or to produce documents that he would not be compellable to produce at a trial. [s. 5] Courts and Judges "having authority under this Act" are:- The Court of Session in Scotland: The Supreme Court in any colony, and any Judge of any such Court: Any Judge in any colony who may be appointed for the purpose by Order in Council. [s. 6] Provision of the Order in Council. In this Act the Supreme Court (i.e. the Supreme Court created by the Order) is substituted for a Supreme Court in a colony. Operation of the Act as applied. The effect of the application of the Act is to make the Condence for foreign sular (Supreme) Court, or any Judge thereof, a Court or Judge "having authority under this Act" within s. 6: that is to say, that requests for taking evidence may be made to it, or him, by a foreign Court in relation to civil and commercial matters pending before it. The Court must, however, be of competent jurisdiction in the Foreign Consular foreign country; and the combined operation of ss. I and 2 would seem to exclude the Consular Courts of such country. The Act would, therefore, not enable the British Consular Courts to assist the Consular Courts of other Powers in the country by obtaining evidence for them. Courts excluded, Where the substitution in the Order is of the " Supreme Court" (as in the case of the China Order) the request must be made to the Supreme, and not to any of the inferior, Consular Courts: for example, to the Supreme Court at Shanghai, and not to the Consular Court at Canton. The necessary instructions would thereupon be sent to the Consular Court by the Supreme Court. The Order in Council referred to in s. 6 would relate to colonial. Judges other than those of the Supreme Courts. An Order in Council would, therefore, be necessary to authorise a request being addressed to one of the inferior Consular Courts. Evidence by Commission Act, 1859.-22 Vict. c. 20. To provide for taking evidence in suits and proceedings pend- [Imp. Stats., Vol. I, p. 176.] ing before tribunals in Her Majesty's dominions in places out of the jurisdiction of such tribunals. Provisions of the Act. [applied by art. 125, China Order.] witness under when witness out Where upon an application made for the purpose it appears to Examination of any Court or Judge having authority under this Act, that any order of Court Court or Tribunal of competent jurisdiction in the dominions has in dominions authorised, by commission, order, or other process, the evidence of its jurisdiction. in relation to any proceeding pending before it of any witness out of its jurisdiction, but "within the jurisdiction of such firstmentioned Court, or of the Court to which such Judge belongs, or of such Judge," such Court or Judge may order the examination of the witness before the person appointed, in the manner directed by the commission. The order (or any subsequent order) may command the attendance of the witness, or the production of any specified writings or other documents, and may give all reasonable and just directions as to the time, place and manner of such examination, and all other matters connected therewith. The order may be enforced, and disobedience thereof punished, in the same way as in the case of an order made by such Court in a cause depending before it. [s. 1] A witness wilfully and corruptly giving false evidence on such Perjury. examination is to be deemed guilty of perjury. [s. 2] The witness is entitled to the like conduct money, and payment for expenses and loss of time, as upon attendance at a trial. [s. 3] A witness may refuse to answer questions tending to criminate himself, or to produce documents that he would not be compellable to produce at a trial. [s. 4] |