'la loi aux cas particuliers: le droit d'exercer le pouvoir judiciaire.' Means the Its legal definition is the exercise of power or authority. It is exercise of power or authority. applied however only to such authorities in the realm as have the exercise of power vested in them: the King, the Parliament, the Executive, the Judiciary. But the vesting of powers includes a definition of them. And therefore the exercise of jurisdiction must be defined to be, the exercise of power by any of the recognized authorities within the limits of the powers vested in them. Means also And this limitation has itself come to be called the 'jurisdiction' of the power. Of the authority: we therefore get a double use of the word, which is at times not a little confusing in the abstract, for the aggregate of powers vested in any authority; and in the concrete, and concrete. for the individual exercise of one of the powers. Thus the issue and service of a writ is within the jurisdiction of the Courts: but the issue and service of a writ is itself an act of authority, and is itself an exercise of jurisdiction. the definition Used both for aggregate Sometimes equivalent to In French law the word compétence, which unfortunately is not compétence. yet a recognized English legal term, is used conveniently as a distinct term from juridiction: Competence' is properly used subjectively, of the nature of the action which any Court may entertain Jurisdiction' is properly used objectively, of the nature of the persons in respect of whom these actions may be entertained. Thus the trial of actions on contract where the sum in dispute is less than £50, falls within the competence of the English County Courts. In many foreign countries the Cours de Commerce are alone competent to determine disputes which come under the Commercial Codes. And so all questions of jurisdiction, so called, in which the question turns on the subject-matter of the action, are questions in which the compétence of the Court comes for decision : as for example, whether an action may be maintained in England for the recovery of real property situated abroad. The legal terms which exactly express the meaning of 'competence' and 'incompetence' are ultra vires and intra vires: they are used however for all authorities except the Courts of Law. On the other hand, the power to allow actions to be brought against foreigners in England is a question of jurisdiction. In all Competence questions therefore there is involved both competence and jurisand jurisdic tion involved diction: in such a rule as this for example, service out of the jurisdiction may be allowed when any relief is claimed against persons domiciled in England-an action against a Frenchman domiciled in England falls within the jurisdiction of the English in all cases. Courts an action for a tort committed by such a person in France is within the competence of the English Courts. territorial jurisdiction There is however yet another use of the word jurisdiction, Means also signifying the territorial area over, or within, which the powers area in which vested in the Courts are exercised; this area being identical exercised. with the territorial limits of the realm. The confusion of terms cf: p. 4. may be exampled thus: It is within the jurisdiction of the Courts to issue a writ out of the jurisdiction. When indeed we say that a person abroad is 'out of the jurisdiction' the word is used territorially; but if he be a person domiciled in England, the fact that a writ may be issued against him puts him within the jurisdiction of the Court, although he is out of the jurisdiction. The fact of this confusion of terms must however be accepted: practically it will be found that the meaning to be applied in the instance is easily to be understood from the context. VII. Furisdiction of the English Courts. We may now briefly survey the law governing the jurisdiction of the English High Court under its ordinary and its extraordinary powers. Any variations which depend on the special jurisdictions of the Court, such as that of the Court of Bankruptcy, or the Divorce Court, will be found under their respective heads. First, as to the persons over whom jurisdiction may be exercised. subject to I. Under the ordinary territorial power, all persons in England, Persons whether subjects or aliens (except foreign potentates, and those jurisdiction who are included in the privilege of exterritoriality), are included, Courts under in all cases. of English ordinary power: ordinary II. Under the extraordinary power granted by Order XI., all under extrapersons out of England, whether subjects or aliens, who are power. domiciled or ordinarily resident in England are included, when 'any relief,' is sought against them. In I. the words 'in all cases,' and in II. the expression 'any relief,' must be taken subject to the rules of jurisdiction in respect of the subject-matter (compétence). III. Under the extraordinary power granted by Order XI., all persons out of England, whether subjects or aliens, who are neither Scotch and Irish subjects. Causes of action within the juris domiciled nor usually resident in England, in the cases laid down IV. Jurisdiction over persons in Scotland and Ireland is Secondly, as to the subjects in respect of which the High Court may exercise its jurisdiction. Under its ordinary powers the English all cases are included. With two exceptions it is an 'universal ' and superintending jurisdiction.' diction of Courts. Rule as to torts abroad. The first of these exceptions is not a rule of jurisdiction procommitted perly so called. If an action is brought in England for damages for a tort committed abroad, the act complained of must of course be wrongful by the law of the country where it was committed. It was held however in the Halley that it must also be wrongful The Halley. by the law of England. Rules depending on lex fori: e.g. Statute of Limitations. Rule as to land abroad. [F. J. pp: 136, et seq:] Recent decision of C. A. as to limitations Other minor exceptions result from the operation of the lex fori, such as the Statute of Limitations: and, where the defendant is (under II.) out of the jurisdiction, in the case of an action for an injunction. The rule in connexion with this subject will be Idealt with in the text. The fundamental exception to the broad rule is where the action is brought in respect of land abroad. The extent of this rule has recently been fully discussed in Campanhia de Mocambique v. British South Africa Company. L. R. 2 P. C. 193. Cnia: de 358. The majority of the Court of Appeal laid down that in respect (1892)2 Q. B. of land abroad, contracts could be enforced, or damages given for of their rule. their non-execution: trusts could be enforced; foreclosure could be decreed; and fraud could be relieved against. These cases 'have been maintained on the doctrine that equity acts against the 'person; and so does a judgment for damages.' And therefore Trespass to the action for damages for trespass to land abroad was held maintainable in England. land abroad. abroad. Lord Esher, M.R., dissented, holding that an action quare clausum fregit always had been, and still was, local and not transitory, and that therefore the action was not maintainable. The point decided by the Queen's Bench Division that an action Title to land for a declaration of title of lands abroad was not maintainable, seems to have been assented to by the plaintiffs, and was not questioned by any of the Judges in the Court of Appeal. The Court held moreover that they had no jurisdiction 'in ejectment, 'partition of land, and other such cases.' Buenos Ayres Ry: 2 Q. B. D. 210. The actual decision in this important case is therefore limited to asserting the jurisdiction of the English Courts in cases of trespass to lands abroad. The action is put on the same footing for rent of as the action on contract for rent of land abroad, which has long Contract been entertained in England (ef: Buenos Ayres Railway Co: V. land abroad. Northern Railway Co: of Buenos Ayres). It is difficult, however, to accept the grounds on which the majority of the Court based their opinion as to the exceptions in ejectment and partition of land. It was practically rested, not on the question of competence, but on another rule-that the Court will not pronounce a decree when they do not possess the machinery for applying the suitable remedy. But these exceptions, as well as the broader exception in the case of an action for a declaration of title to lands abroad, have always been based, both in England and on the Continent, not on the powerlessness of the Court to enforce its decrees, but on the higher ground of the exclusive jurisdiction of the national Courts. It is suggested that this is the true ground of the exception. The limit to the exception is probably contained in the suggestion made by Fry, L.J., during the argument, that the English Courts have no jurisdiction in cases in which the foreign law of real property is involved: to cases in which, if they were triable, the lex loci rei sita would be applied. The jurisdiction of the Court in respect to the subject-matter VIII. General Principles on which the Procedure is based. FINALLY we must inquire what general principles underlie the Funda on which From what has been said in the first section it seems better at first to consider these principles apart from any influence which mental idea the Roman Law may have had on those who framed the rules: the proto assume that they were made as expediency suggested, and in based. cedure is Nature of cause of sidered. Protection of national ignored. Principle tion should follow the law applic able. v. Anderson. I direct opposition to the principle which was assumed to be expressed in the maxim actor sequitur forum rei. The more perfect systems which admit the necessity of this assumed jurisdiction reject, on the one hand, a broad rule which allows the arrest of property to found jurisdiction irrespective of the nature of cause of action; and on the other hand, the other broad rule action con- which, also irrespective of the nature of the cause of action, bases the jurisdiction on the protection of the national. These systems consider that the nature of the cause of action must be taken into account; that there are some which ought to be tried in the plaintiff's forum, others which ought not. The simplest of these systems is that which founds the jurisdiction on the fact that the cause of action arose within the territory. Among the more discriminating systems, however, the guiding principle that jurisdic has been said to be that where it is well settled by the comity ' of nations that any question of private right falls to be decided 'by the law of a particular country, it would seem reasonable that 'the Courts of that country should receive jurisdiction and the 'power of citing absent parties, though residing in a foreign land' (Lord Westbury, C., in Cookney v. Anderson). It cannot be Cookney doubted that, even regarding the rules as a mere convenient D. J. & S. contrivance of modern legislation, this principle must have entered largely into the intention of the framers of them. And if it is admitted, the rules rest on a logical basis and cease to be arbitrary : and, it might also be said by way of corollary, that foreign systems based on the same principles should be recognized as of binding force on those against whom they are put in force. But, it will be said, how comes it then, not only that the English rules of 1875 were changed in 1883, but that foreign systems Difficulty in differ in the application of the principle? The explanation, at the case of least in the important question of contracts, can easily be found. It is not at all clear that the rule of international law with regard governing to the interpretation of contracts can be stated with precision, interpreta- and this uncertainty has led inevitably to a divergence in the different procedures dealing with contracts. The uncertainty lies between the lex loci contractus and the lex loci solutionis ; and the consequent result is that the forum of the plaintiff is taken now when the contract was entered into within the jurisdiction: now, when the breach takes place within the jurisdiction, that is to say, when the contract ought to have been performed, but has not been performed, within the jurisdiction: and yet again, these two cases are put alternatively. Converse principle. contracts arises from uncertainty of law at p. 379. |