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50 & 51 Vict. c. 28.
The Merchandise Marks Act, 1887,
The Patents, Designs, and Trade Marks Acts, 1883 to 1888, Any Act, Statute, or Order in Council for the time being in relating to copyright, or to inventions, designs, or trade
46 & 47 Vict.
Vict. c. 50.
cf. post, p. 180.
of Court, r865.
Any Statute amending or substituted for any of the abovementioned statutes,
is to be punishable as an offence against the Order in Council, whether the act is done in relation to any property or right of a British subject, or of a foreigner, or otherwise;
with the provisos, that copies of such Statutes or Orders are to be published in the Consulate, and to be open to inspection by any person at all reasonable times; and that a prosecution by or on behalf of a prosecutor who is not a British subject shall not be entertained without the consent in writing of the Consul, who may withhold such consent unless he is satisfied that effectual provision exists for the punishment in the country of similar acts committed by the subjects of the State of which the prosecutor is a subject, in relation to or affecting the interests of British subjects.
In the Rules of Court, issued May 4, 1865, for the Consular Courts of China and Japan, and framed under the Order of 1865, there is little requiring special notice in this place.
With regard to the seizure in execution and sale of goods, it is provided that the order for sale is not to be made unless the Court is satisfied prima facie, that they belong to the person against whom execution issued, and are in a place where the Court has a right to exercise jurisdiction.
With regard to parties out of the jurisdiction, the term used is "out of the jurisdiction of the particular Court," both as to plaintiffs who are required to find security, and as to substituted service of writs or other documents on defendants. It may be that this refers simply to the jurisdiction of the provincial Courts, in the same way as the jurisdiction of the County Courts is dealt with cf. ante, p. 99. in England. It is not clear on the face of it whether the rules deal with the larger questions of plaintiffs or defendants "out of the jurisdiction," that is to say, out of China or Japan, as the case may be.
In the same way, the rules dealing with the apprehension of offenders, and summonses to witnesses in criminal matters, refer to British subjects "within the particular jurisdiction."
With regard to search warrants, it is provided that they may
authorize searches "in any house or place over which, by reason of the nationality of the occupier thereof, the Court has jurisdiction."
Generally, all criminal trials, and proceedings before and after trial, are to be conducted as nearly as may be as criminal trials, and the corresponding proceedings, are conducted in England.
The Principles on which the Orders in Council are
LET us now
now see how the principles established a priori, in Section X., are borne out by the rules laid down in the Orders ante, p. 95. in Council. The point which attracts attention at once is the quasi-legislative power which is put into the hands of Her Legislative Majesty's Ministers in Oriental countries, and the points as to H. B. M.'s which their power is exercised.
Granted that some room for the exercise of legislative power by the Queen in these countries exists, it seems clear that she may delegate it to her representative, or allow it to be exercised by him subject to her supervision. The questions arise only when we come to consider the subjects to which this legislation inay be directed. They are two: the observance of the stipulations of the Treaty; the peace, order and good government of British subjects in the country.
First, as to the observance of the Treaties. The Treaty- Observance of making prerogative of the Sovereign has, as is well understood, certain limitations attached to it. Changes in the law can only be carried out by means of an enabling Act of the Parliament. The Queen has no power of herself to enforce the observance of stipulations in Treaties by her subjects at home. Nor is the power of enforcing it on her subjects in the foreign country granted to her by Treaty in express terms. If we take a case outside exterritoriality, we shall see at once that these regulations do not depend for their validity on the Treaty prerogative of the Queen, but on the legislative authority of the country with
Legislative power involved in Treaty grant.
whose Sovereign she has made the Treaty. Assuming that a Treaty were made between the Sovereigns of Great Britain and Germany whereby it was mutually agreed that registers, compulsory on the persons affected, should be kept of British subjects in Germany and of German subjects in Great Britain. It is obvious that the Emperor of Germany could not exercise any compulsion on his subjects here, nor the Queen on her subjects there, in virtue of any prerogative power. Such a Treaty could only be enforced in England in virtue of an enabling Act of Parliament requiring Germans in England to register, though it might vest the power of enforcing it on German authorities in England: and conversely the proper legislative authority would be required in Germany directed against British subjects there.
And this much is at least clear, that if the Treaty prerogative has no inherent power of enforcing Treaty stipulations either at home or in an independent State, it certainly cannot acquire that power indirectly by means of a Treaty which, even in its broadest form, only gives civil and criminal jurisdiction over subjects. If it acquires this power, it must be in some other way which has no connection with the prerogative. It does in fact spring by inference from the terms of the grant itself.
Now we have seen that the right to adjudicate in respect of the criminality of an act, and the right to determine disputes, carry with them the right of declaring by what law the several questions shall be settled. Within the grant of foreign jurisdiction therefore there is contained a certain amount of legislative power: it involves, that is to say, the subjection of British subjects in the foreign country in question to the legislative supremacy of their own Sovereign, within limits which the Treaty defines. In the case then where criminal acts by British subjects are put simply within the jurisdiction of the British authorities, the Queen may exercise her resulting power not only by declaring general power that alleged offences by her subjects shall be tried and adjudged of Queen to deal with according to English law, but also by making, or authorizing her crimes by her Minister, subject to her supervision, to make, laws specially applicable to the condition of those subjects. And within this principle falls not only the authority given to her Ministers to
Enforcing observance of Treaty regulations comes within
make regulations for the observance of the stipulations of the Treaty, but also the direct authority given to the Consuls to enforce the stipulations themselves or the regulations appended to the Treaty.
But this again is obviously only part of the much wider power General power of legislation of general legislation. This power is expressed in the words within limits. "peace, order, and good government," in respect of which the Minister's regulations may be made. These words constitute the common form in which legislative authority is given by Parliament, whether, as in such a case as Cyprus, to a High Commissioner acting with the advice of a Legislative Council; or, as in the case of New South Wales and other Australasian Colonies, to Her Majesty by and with the advice and consent of the Council and the Assembly.
Her Majesty's Minister in an Oriental country is therefore put, to all appearances, in a legislative capacity equivalent to that of the legislative authorities of the Colonies. But, unless the Treaty is to be left out of consideration altogether, this resemblance is on the surface merely, the Treaty limitations must be read into it; or, to put the matter more accurately, the legislative authority delegated to the Minister on behalf of the Sovereign is similar in its nature to the legislative authority exercised by the legislatures of the Colonies: but it is not greater than that vested in the Sovereign herself, and the terms of it are to be found in the Treaty.
I am disposed to think, therefore, that it can never have been intended to give to Her Majesty's Ministers full legislative powers, but that the expression "peace, order, and good government" are intended to be read with a proviso, "so long as the regulations do not exceed the powers granted to Her Majesty by the Treaty, in accordance with which the Order in Council is framed."
But here the words of some of the Treaties interpose another difficulty. The grant of legislative power to the Minister appears to be fully warranted where the jurisdiction, whether civil or criminal, is granted to the Queen simply. But both Where British in civil and criminal cases mention of British as the governing in Treaty. law is often to be found; and occasionally also of the native
Power of legislation probably
law. Now just as the rights of establishing Courts and appointing Judges, legitimate inferences from a grant of power to determine disputes, are curtailed when the Treaty declares that civil disputes (for example) shall be tried and adjudged by the British Consul with, "and by," a native officer; so it is obvious that the legislative power of the Minister would be limited, although granted in general terms in the Order, by a declaration in the Treaty that civil disputes are to be determined according to native law.
In the same way, if the Treaty declares that either the civil or criminal jurisdiction is to be exercised by British law, it would seem that the free legislative power of the Minister must also cf. ante, p. 96. be limited, or be possibly non-existent. Because the expression "British law" means the enactments of the British Parliament, or the principles of the British Common Law, alone; it does not recognize the Sovereign, or her representatives, as legislators. And this point is far from being a trivial one. The grant of jurisdiction in the Treaties does not affect British subjects alone,
cf. ante, p. 94. for, as we have seen, the rights of both nationals and foreigners
function of Minister,
as against British subjects are affected by it. And it may well be thought desirable by the State making the grant that it should contain a definition of the law under which it shall be exercised; seeing that the grant of jurisdiction carries with it inevitably the rule of conduct for people governed by it, it may well be thought desirable that all other persons, whether natives or foreigners, should have fair warning by what law their relations with British subjects will be determined, if the British subject is in default.
It is to be noticed moreover that the expression generally used is "British law": this would seem expressly to include Scotch law for Scotchmen, and, where it differs, Irish law for Irishmen. This view, however, is not supported by the Orders in Council, which take "British law" to mean "English law": and to this law, English, Scotch, Irish, and the Colonists in the Oriental country are made subject.
The judicial function of the Minister, or Chargé d'Affaires, also requires special attention. Where there is no appellate tribunal,