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 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

deal with

subjects.

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

law mentioned

Power of legislation probably

curtailed.

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 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.

Judicial

function of Minister.

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,

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.*

mercy.

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?

Probable

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.

XIII.

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