Where territorial condition attached to right. the Patents Acts expressly apply to foreigners, and that residence is not a condition of registration: but so far as copyright is concerned, I do not think there can be any question, and the principle would be the same in the absence of the special provision of s. 4 of the Patents Act, 1883.* But then there is this further question:--Does not the fact that these Acts are extended to China imply something more than this? Does it not mean that registration in England carries with it copyright and patent rights in China among the British community? One point is quite clear: that the extension of the Acts implies the possibility of creating such offices as may be necessary to acquisition of the ensure the enjoyment of the rights in China, in this way treating the statutes as legislation for the British community. The operation of the statutes as far as circumstances admit, and with such variations as may be necessary, must involve the right-in which we may assume, for the propose of the argument, the oriental Government to have no concern-of taking the necessary steps to enable the right to be enjoyed. The provisions of the of pp. 152, 153. China Order in respect of mortgages and bills of sale are illustrations of this. Statutes which confer rights At this point in the argument it is necessary to consider the without condition, case of statutes which are self-operative, requiring no office or machinery to give effect to them: such, for example, as the 45& 46 Vict.c. 75. Married Women's Property Act. There can be no doubt that under the general provisions of art. 89, the Act applies to China, and governs the property of married women British subjects in that country. If there were any doubt about the question it can be answered directly from the words of the treaty; for in the suit of, say, a dressmaker for payment of her account, the question whether a married woman's earnings are her separate property is a "question in regard to rights arising between British subjects in China," and therefore subject to the jurisdiction of the Consular Court, and to be determined according to English law. Unless the common law alone is extended by art 89, there can be no doubt about the matter. 66 *This question, and other kindred ones, are discussed at length in Chapter VII, of Nationality," Vol. II, which deals with "The Enjoyment of Territorial Rights by Subjects and Aliens abroad." In order not to repeat what has already been printed, I am obliged to base the argument in this Section on the conclusions arrived at in the work above referred to. The question is obviously one of great importance in view of the innumerable questions which may arise in so large a foreign community as that in China, and the very many important statutes which may have to be applied to British subjects residing there: Take the Fatal Accidents Acts, for example; there can be no 8 & 9 Vat. c. 93. question that the relief which is given by these Acts to the 27 28 Vict. c. 95. relatives of a person killed by the wrongful act, neglect or default of another, can be recovered in the Consular Court. Reverting now to the Copyright and the Patents Acts. It may not be advisable, for financial or other reasons, to create offices in China for the purpose of registering the ownership. Assuming that registration in the United Kingdom by itself confers no Consequence of rights in China, yet a certain measure of protection may still be clauses only. extending penal afforded to those who, resident in the East, have registered in England, by extending the area of protection consequent on registration to the limits of the Order applicable to China. By the extension of the penal clauses of these statutes, as is done in art. 69, the rights acquired under them are protected in China among the British community. The result of this is to extend the benefits of the Acts to oriental countries: the benefit, more expecially in the case of the Merchandize Marks Acts, not being, f. p. 132. as it would seem, limited to the British community. This, however, must be taken subject to what will presently be said on this question. The point to be specially noted in connexion with the present argument is, that it is probable that this result is arrived at by the mere fact of the Acts being extended by art. 89. There is also the difficulty pointed out on a previous page, that cf. p. 133. the remedies in the case of copyright are only quasi-penal. enforceable in The question can now be put into most practical shape. Does Civil remedy under Copyright the civil remedy for infringement of copyright, registration and Patent having been effected at Stationer's Hall, or of patent rights Acts probably acquired in England, lie before the Consular Court for an infringe- Consular Court, ment by a British subject in China? If the extension of the statute law to China means anything, I think it must. And if the civil remedy lies, then also the penal clauses must be enforceable. There is, however, a special condition in art. 69 in connexion Foreigners. with foreigners, which introduces another complication into the argument. So far as the United Kingdom is concerned, the position of foreigners is this. They can acquire the rights, How far the power of exer though non-resident, by fulfilling the condition of registration.* Can they therefore obtain the benefits of the extension of the Acts to an oriental country? If the Order in Council imposes a condition to such enjoyment, as of reciprocity, then that condition must override all other considerations. But supposing no such condition, then I am disposed to think that the extension of English law to the oriental country, being expressly for the purpose of determining disputes as to rights arising between British subjects, the consequent right to determine what those rights are must be limited also to British subjects. It seems to be more than doubtful whether the right, acquired cising jurisdiction by treaty or sufferance, of exercising jurisdiction as against imports the power foreigners, would involve the right of deciding what the rights of of determining the rights of foreigners are: and even in the case of a suit by a foreigner foreigners? against a British subject for infringement of a right acquired in England, it is doubtful whether the extension of the Act under which the right was acquired to China would cover this case. I do not profess to give a decided opinion on a point which is one of great difficulty: for we have now come round to the question with which we started, Does a special criminal statute applicable to British subjects in China apply to them when the offence is committed against a foreigner, whose own laws afford him no such protection, nor perhaps even any similar to it? To bring this theoretical argument to a conclusion, one further point must be mentioned. Suppose the necessary machinery established in China for registering, for example, rights to patents, could a foreigner avail himself of it as he could in similar circumstances in the case of the Act itself in the United Kingdom? Putting the question of reciprocity on one side, the answer to this question would probably be the same as in the case considered in the last paragraph. Although as I have just said, this somewhat lengthy argument may seem to be purely theoretical, yet at certain points its practical application peeps through, so to speak, the envelope of theory: for example, in the case of Lord Campbell's Act, and in the case of mortgages and of bills of sale. I must now endeavour to give the argument a most practical turn by pointing out that, in almost every branch of it, it may at any moment have to be 25 & 26 Vict. c. 89. considered in connexion with the English Company Acts. see the footnote on p. 264. * Here is a very concrete illustration of an Act of the United Application of Kingdom which, in its territorial application, non-resident argument to company law. foreigners may avail themselves of. There is a registration office in Somerset House, and the Act is included in the English law extended to oriental countries. The questions which arise are: Can associations of more than 7 persons [s. 6] formed in, say, China, register in England, thereby acquiring both in England and China all the rights of registered limited liability companies? Secondly, must such an association of more than 10 persons, formed for the purpose of carrying on the business of banking: or of more than 20 persons [s. 4] formed for the purpose of carrying on any business other than banking, having for its object the acquisition of gain, register under the Act? Thirdly, would it be possible to establish a registry for companies in Shanghai; and if so, would it of necessity be limited to companies composed entirely of resident British subjects? Incidentally, a fourth question arises: Can the company law of a neighbouring colony, such as Hong Kong, be used in substitution for the law of England? The most practical way of shewing the extreme importance Possible of arriving at a correct solution of these questions is by putting consequence of applying a still more concrete case. A British subject has taken shares in English company such an association: there is a false description in the prospectus, or there is an omission of a contract which ought to have been disclosed: can the promoters be prosecuted for fraud? I am here travelling into a region which is familiar enough in practice, but is at present most unfamiliar in law. The principles which I believe to be applicable to the subject, and from which the answers to these questions are to be derived, are the logical conclusions from fundamental principles which are no longer merely theoretical, but which have received practical recognition by the Judicial Committee. But there may be many considerations which have escaped my attention, and discussion in a Court of Law is the only way in which all the necessary considerations can be brought to bear on so knotty a problem. It seems wiser therefore to leave the argument in the somewhat suggestive form in which I have put it, adding only one word to emphasise its importance. Foreigners may be members of English companies. There seems indeed no reason why a company registered in England may not be composed entirely of law. foreigners. A company formed in an oriental country, such as China, and registered in England may therefore presumably be composed entirely of foreigners or natives. Such a company may also, it is presumed, be registered in Hong Kong; and having its principal place of business in Hong Kong, though carrying 57&58 Vict.c.60. on its business in China, it may, under s. 1 of the Merchant Shipping Act, 1894, be the owner of a British ship. Examples of abandonment. Servia. cf. Appendix. Japan. Method adopted in the case of i. French law. XV The Abandonment of Foreign Jurisdiction. THE abandonment of the Queen's foreign jurisdiction forms naturally the subject of the concluding Section of this book. In Servia, where the Turkish Capitulations were in force, the exercise of the jurisdiction has been surrendered by the Treaty concluded in 1880, except with regard to disputes, other than those effecting real estate in Servia, between British subjects and the subjects of other Powers which have not surrendered their privileges under the Capitulations. In Japan, the jurisdiction was abandoned by the Treaty of 16th July, 1894, which ultimately came into force on 4th August, 1899. The abandonment was effected by an Order in Council, 7th October, 1899, which, after reciting the existence of the Queen's power and jurisdiction in Japan and the Treaty above referred to, declared that the operation of the Order in Council regulating the exercise of the jurisdiction should cease from the 4th August. The case of Tunis, in which the jurisdiction was abandoned in favour of the French Protectorate, or Regency, furnishes an interesting example of the process by which such a surrender in favour of a protecting State should be accomplished. The essential documents were three in number. First, a French law for the organization of the new French Courts to be established in the country. These tribunals were declared to form part of the jurisdiction of the Supreme Court of Algiers in the French Colony of Algeria. Their jurisdiction is defined in much the same language as the jurisdiction clauses in the treaties, and includes French and French protected subjects. Their authority may |