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merely extending the benefit of the Act to probates and letters of administration granted by the Consular Courts. Yet even here an Order in Council is required in respect of each country to the Consular Courts in which the Act is to apply.

The practice of Parliament, therefore, appears to coincide with the principle which I have suggested as constitutional.

There is indeed warrant of the highest authority on such matters for applying the term "unconstitutional" to legislation which should ignore this principle. In precisely analogous circumstances, legislation for the self-governing colonies in matters of domestic concern, Sir Erskine May, in the chapter on the Power and Jurisdiction of Parliament in his "Parliamentary Practice" gives the following note:-" Parliamentary legisla- [Chapter II.] tion on any subject of exclusively internal concern to any British Colony possessing a representative Assembly, is, as a general rule, unconstitutional. It is a right of which the exercise is reserved for extreme cases, in which necessity at once creates and justifies the exception."-Lord Glenelg (Parl. Papers, 1839 [118] P. 7.)

We have now established the complete chain which supports the King's foreign jurisdiction.

An Englishman in China-to take a concrete case: a certain amount of power which the Emperor of China would otherwise exercise over him ceded to, and accepted by the King of England: all other sovereign powers not ceded remaining with the Emperor. The extent of the ceded powers defined by specific articles of the Treaty of Tientsin-or, more strictly speaking, by the specific articles in the group of Chinese treaties concluded with other Powers, under the most-favoured-nation clause.

The ability to accept these powers dependent on the prerogative of the Crown, and the right to exercise them vested in His Majesty by the general enabling Act of the British Parliament. The extent to, and the manner in which, they will be exercised, declared by the King in Council in various Orders issued from time to time.

Position of British subject vis-àvis British Government.


The Relation of the Courts to the King's Foreign

WE COME now to an important point which follows naturally
on the discussion in the preceding Section. For convenience it
may be thus stated:-What is the position of a British subject
in an Oriental country vis-à-vis his own Government? I say
that the question may be stated thus for convenience, because
what has gone before shews that the British subject has nothing
to do with the Sovereign of England, except through the inter-
mediate action of the Sovereign who has granted the privileges
by treaty. When jurisdiction is conferred on the King over
foreigners, as in the case of Zanzibar, precisely the same question.
arises, the accurate form of which is:-What is the position of
the person over whom the jurisdiction is exercised vis-à-vis the
Sovereign exercising the jurisdiction?

Seeing that the jurisdiction exists by treaty, and is limited and defined by treaty, it is possible to imagine the exercise of some power which depasses the limits and definitions. This, evidently, gives cause of complaint to the Sovereign of the country; but does it not also give a cause of complaint to the person against whom it is exercised? And if it does, what is his remedy?

If it is wrong quoad the foreign Sovereign because the grant of jurisdiction has been exceeded, it must also be wrong quoad the person over whom the jurisdiction is claimed, because it is non-existent.

One remedy lies on the surface; he may seek the protection of the Government of the country, and request its intervention. But is there not another remedy, or rather, some means by which the validity of the jurisdiction claimed in the Order in

See the judgment in the Laconia, in which this proposition is discussed: post.

where Orders in


Council may be tested? If the case arose before a Court, could The remedy he not raise the question for decision? Or, if it were a case of Council are at exercise of power on the part of the Executive wrongfully variance with the authorised by the Sovereign, is there not a wrong done for which he may claim redress, the plea of the Sovereign's command being bad in law? Shortly, in whatever form the question is raised, have the English Courts, whether Consular or other, any power of supervision over the exercise of the King's foreign jurisdiction?

On general principles, it would seem that the Court itself, before which the matter comes, could enquire into its own jurisdiction, and could pronounce on the validity of the Order in Council pretending to confer the jurisdiction claimed to exist.

There appears to be no doubt that the Courts in any colony may be called upon to adjudicate upon the validity or constitutionality of any Act of the Colonial Parliament.*

The argument is that if the colonial law is at variance with the provisions of an Act of Parliament extending to the colony in question, of the two commands, the Judges would be bound to obey that of the higher authority-the Imperial Parliament.

And so in the case of the Consular and other Courts: so far as the Order in Council is concerned, if it exceeds the provisions of the treaty, the Sovereign's command must be over-ridden by the general law. The only power which the Sovereign is permitted to exercise in a foreign country by means of an extra-territorial command is the power obtained by treaty. And therefore in this case also there are two commands: the Sovereign's, as expressed in the Order in Council, and that of the common law. And as before, the higher command-that of the law-must prevail.

In the case of The Fox, a precisely analogous question was The Fox, Edw. Adm. 311. considered by Sir W. Scott: "What would be the duty of the Court under Orders in Council that were repugnant to the law of nations?" It was contended on one side, that the Court would at all events be bound to enforce the Orders in Council; on the other, that the Court would be bound to apply the rule of the law of nations adapted to the particular case, in disregard of the Orders in Council. The learned Judge declared that the Court

* Dicey on the "Law of the Constitution," p. 100.

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would be bound, if such an occasion arose, to administer the law of nations. The peculiar nature of the "higher command" in this case introduced, it is true, the relations between the Government and foreign Powers; but the principle, it is submitted, is precisely analogous to that applicable to conflicts between the Colonial and Imperial Legislatures: and both seem to be analogous to the question in hand.

The Act itself, in s. 12, leaves the matter free from doubt.

That section provides, in the first place, that if any Order in Council made in pursuance of the Act is repugnant to the provisions of any Act of Parliament extending to British subjects in any foreign country, or to any Order made under the authority of any such Act, it is to be read subject to that Act or Order, and is to be void to the extent of the repugnancy. Secondly, that an Order in Council is not to be deemed void on the ground of repugnancy to the law of England, unless it is repugnant to the provisions of some such Act or Order.

These provisions, which will be examined at greater length in due course, permit all Courts, including the Consular Courts, to test, should occasion arise, the validity of any Order in Council. The provisions of s. 4, which enable the Secretary of State to give a decision on certain points connected with foreign jurisdiction, may, however, have some bearing on the question; but this also must be postponed for the present.

So far we have only considered the repugnancy of the Order in Council to the treaty. A far more difficult point remains to be considered. An Act of Parliament itself may be repugnant to the treaty; or may authorise Orders in Council to extend to foreign countries a statute which is repugnant to the treaty.

The point involved in the hypothesis will be considered in due course; but let us assume for the moment that deportation of prisoners is not warranted by treaty, and that, therefore, the general deportation sections of the Foreign Jurisdiction Act, and the special provisions for deportation in the statutes which may under that Act be applied to foreign countries by Orders in Council, exceed the power granted by the oriental Sovereign.

I have spoken with all becoming reverence of the omnipotence of Parliament: but I propose to enquire whether it is really true to say, with Lord Coke, of the power and jurisdiction of the Parliament, that "it cannot be confined either for causes or

persons within any bounds"; and with Lord Fortescue, "si jurisdictionem spectes, est capacissima ?"-whether there are

not, in fact, some broad limitations to this omnipotence; and The limitation to the omnipowhether, if these limitations are overpassed, the Courts may not tence of Parliadisregard the provisions of the statute?-whether, in short, ment. there is such a thing as an Act which is ultra vires the Parliament?

There are scattered through the old Reports many expressions of judicial opinion that the common law is superior to an Act of Parliament. The "sages of the law have left us examples of what in their view a statute is impotent to command. Parliament, they tell us, may not permit a man to commit adultery, nor forbid that even in extreme necessity alms should be given, or make a man a judge in his own cause."* Two or three quotations from judgments will be sufficient for my purpose.

Edw. Adm. 311.

cf. p. 29.

In 1623, in the case of Day v. Savadge, Lord Hobart, in Day v. Savadge, Hobart, 87. pronouncing against a certain alleged custom of the City of London, said, "By that which hath been said it appears, that though in pleading it were confessed, that the custom of certificate of the customs of London is confirmed by Parliament, yet it made no change in this case, both because it is none of the customs intended, and because even an Act of Parliament, made against natural equity, as to make a man judge in his own case, is void in itself; for jura naturæ sunt immutabilia, and they are leges legum." Two centuries later Sir William Scott, in the case of The Fox, continuing the argument already quoted as to the The Fox, powers of the Court in the case of Orders in Council, said, "The constitution of this Court, relatively to the legislative power of the King in Council, is analogous to that of the Courts of Common Law relatively to that of the Parliament of this kingdom. Those Courts have their unwritten law, the approved principles of natural reason and justice—they have likewise the written or statute law in Acts of Parliament, which are directory applications of the same principles to particular subjects, or positive regulations consistent with them, upon matters which would remain too much at large if they were left to the imperfect information which the Courts could extract from mere general speculation. What would be the duty of the individuals who preside in those Courts if required to enforce an Act of Parliament which contradicted those

* Hearn's "Government of England," p. 49.

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