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appeals from the Consuls are heard by him. In civil matters it is important to notice that his functions are purely judicial, and that he cannot have any discretionary power to remit or vary judgments. The Sovereign has no such power within her dominions. The enforcement of the sanctions of the criminal law alone rest with the Crown; in civil cases it rests with the successful party. And the representative of the Sovereign can have no greater power than the Sovereign represented.*


In criminal matters the exercise of the prerogative of mercy Prerogative of is to a certain extent vested in him; but it is not exclusively vested, it being expressly declared to remain with the Sovereign.

The inclusion of the prerogative of mercy in the general scheme of extra-territorial government seems to follow from the general terms of the grant. There may be some doubt, however, whether it can in strictness be exercised where the tribunal is "mixed."

The execution of writs issuing from a neighbouring Colonial tribunal, the concurrent jurisdiction in civil matters of that Court, as well as its appellate jurisdiction from the Consular Court, seem to fall within the doubt already expressed as to whether they are not in excess of the limits which are set to the jurisdiction of the Courts in Oriental countries.

The subject of registration is dealt with, as will be seen, in Registration. different ways. In some cases, as in that of Siam, it is expressly mentioned in the Treaty; the privileges are then only post, p. 229. granted to registered British subjects. In other cases it is made compulsory only by the Order in Council; but here again the practice is not uniform. In some cases a pecuniary penalty for non-compliance with the Order is imposed; in other cases the method of recovering the fee only is indicated. In all cases a small fee, of about 1, is charged. The trouble arises in connection with this fee. By some it is argued, not without a show of plausibility, that the fee is a tax-a " poll tax," most obnoxious

* The functions of the Queen in Council in the matter of appeals from the Colonial Courts are judicial, she being advised by the Judicial Committee of the Council according to the law; they do not originate in the prerogative of mercy.

of all to the true Briton-and that the British Government has no authority by Treaty to levy any taxes. The position is a sound one, but it comes curiously from those who would resist to the uttermost any attempt at taxation by the native Government. Yet the right of taxation has not been abandoned by the countries who have granted us exterritorial privileges; except in the case of Turkey.

But the application of the argument is, I think, open to some question. The register is an essential in order that the protecting duties of the Minister may be properly exercised: it would Necessity of be essential even if there were only the national and the British the register. communities; it is ten times more important when the foreign community is composed of many nationalities. If the sheep are not marked upon the mountains, how shall the shepherds know their sheep?


validity of fee.

I am disposed, therefore, to regard the registration fee in the light of a charge for work and labour done, or service rendered, and in the same category as other fees charged by the Consuls on the authority of the Statute, 6 George IV. c. 87, although it is not included in the Tables of Fees ordered to be collected under that Act.

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Offences Created by the Orders in Council.

WE considered in the last section the question of enforcing the stipulations of the Treaty, and the right to make penal regulations for carrying the Treaty into effect which is vested in the Queen's representative. There remain a certain number of offences specially dealt with in the Order in Council, and which are created for the purpose of carrying out the promise of the first article of the Treaty of "perpetual peace and friendship between the High Contracting Parties, and "between their respective dominions and subjects."


These offences are defined in the sections of the Order in Council dealing with "war, insurrection, or rebellion," "offences


against religion," and "unlawful trade." Of these, the warrant for the first two seems to be found in the application of the English law of public order to the State in which British subjects are allowed to enjoy exterritorial privileges. The first recognises the War, or Sovereign of that State, and makes criminal the expression of intention to depose him, to levy war against him, or to move or stir any foreigner with force to invade his dominions, in the same way as the expression of such intentions against the Queen is a treasonable felony by the law of England. The second applies Offences against that part of the public law of England which protects ministers religion. and worshippers in the exercise of their religion, as well as the sanctuaries, to the ministers, worshippers, and sanctuaries of the country in which the Queen's subjects have taken up their residence.

c. 90.

With regard to war and rebellion, it will be remembered that the Foreign Enlistment Act (with the exception of so much of 33 & 34 Vict. it as is extra-territorial) is incorporated in the general body of English law administered by the Consular Courts; and also the common law offence of publishing "any libel tending to Offences against degrade, revile, or oppose to hatred and contempt any foreign foreign prince or potentate, ambassador or other foreign dignitary, with Sovereigns. intent to disturb peace and friendship between the United Kingdom and the country to which any such person belongs."


From the general warrant which both the Treaty and English law give to the foregoing provisions of the Order, must be excepted that clause which makes it a misdemeanour for any Provision in British subject, without the licence of Her Majesty, to take part Treaty. in any operation of war in the service of the Emperor of China against any persons engaged in carrying on war, insurrection, or rebellion against the Emperor of China.

It is necessary to disregard any political question which may have arisen out of our early relations with China to necessitate the introduction of this clause; the point raised by it is simply, is there any prerogative power in the Sovereign in virtue of which subjects may be prohibited from assisting foreign Sovereigns to quell rebellions, or to resist the attacks of enemies?

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* See Sir Fitz James Stephen's Digest of the Criminal Law,' article 99 ; and as to disturbing public worship, article 167.

Unlawful trade.

Unless the enemies are in amity with England the case falls outside of statute law and it is to be observed that the provision extends to insurrection and rebellion as well as to war.


The history of foreign enlistment has been fully treated by Sir FitzJames Stephen in his 'History of the Criminal Law of England,' Chapter XXXI. It is unnecessary to recapitulate here what has already been said. The learned author shows that the question has always been the creature of statute, the common law recognising the right of enlisting in foreign service. The matter therefore seems also to be outside the prerogative.

With regard to unlawful trade, the third in the group of Order in Council offences, the matter seems to be different. The Sovereign is said to be the protector of commerce ; and "it cannot be denied that, as the King alone may make Treaties, a Treaty made by him with a foreign Power, forbidding any particular commercial dealings between the two countries, might have the effect of rendering it illegal for a British subject to enter into such commercial transactions, contrary to such arrangement.

The argument seems to depend upon the somewhat shadowy prerogative of recalling subjects from foreign parts (the penalty if they do not come when they are called being confiscation of goods), and hence the King “may, by virtue of that prerogative, prevent them from personally trading abroad."

The question may possibly not bear too close an analysis. Learned old writers assert that the prerogative exists; if it does exist, it is independent of any Treaty or any grant of foreign jurisdiction: it must extend to the prevention of British subjects in Spitzbergen trading with the inhabitants of Nova Zembla: it must extend too to all Oriental countries, though here there is the greater convenience of a Consular Court to enforce the mandate.

* Chitty on the 'Prerogatives of the Crown,' p. 170.


Special Authorities of the Courts.

I PROCEED now to consider the "special authorities of the

I. BANKRUPTCY. The authority given in the Order as to Bankruptcy jurisdiction. bankruptcy is to exercise the jurisdiction of the English Courts of Bankruptcy "with respect to British subjects and their debtors and creditors, being either British subjects or foreigners submitting to the jurisdiction of the Court.”

With regard to British subjects, the jurisdiction in bankruptcy comes well within the grant of power to settle civil disputes: it involves a settlement which is not only compulsory on the bankrupt, but also on his debtors and his creditors. But if the Difficulties in exercising it administration of an estate in bankruptcy is rendered difficult fully. in England by the existence of foreign debtors and creditors, it is rendered doubly difficult in a country where exterritoriality exists.

Even with regard to the debtor himself some doubt might arise whether the bankruptcy jurisdiction is properly exercisable when the act of bankruptcy is committed elsewhere than in the Oriental country. Most of the definitions of acts of bankruptcy 46 & 47 Vict. commence with the words, "If in England or elsewhere." This doubt would, however, probably be determined in the affirmative; bankruptcy jurisdiction resulting from the act of bankruptcy, and not being exercised in respect of it.

The application of the statute law to the British community in an Oriental country must be effected in the same way as the application of the statutes in the first schedule of the Foreign Jurisdiction Act, that is, by making the necessary changes in territorial words. The reason for making a special group of extra-territorial statutes to be applied at the Queen's pleasure has already been explained.

"If in England," in the definitions of acts of bankruptcy, would then become for the purposes of the Consular Bank

c. 52, S. 4.

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