described as the Queen's "Foreign Jurisdiction." But, in England at least, there is another element which we are forced to consider, the Parliament. Indeed, the mere statement of the fact that the Sovereign has acquired power and jurisdiction over people— whether it is confined to her own subjects or not is immaterial for the present purpose-in a foreign country, immediately suggests the question whether she has a constitutional right to exercise this power without the sanction of Parliament. the exercise powers. The problem presents itself in this form: The Treaty-making Enquiry if Parliamentary power is one of the prerogatives of the Crown. The law does authority nenot fetter the prerogative with regard to the mere acquisition of cessary for rights from, nor the mere incurring obligations to, a foreign of Treaty Sovereign. It is only with reference to the exercise of the rights, or the fulfilment of the obligations, in England that Parliamentary authority is necessary. The enabling Extradition Act sanctions the performance of the obligation of extradition. But the analogy between extradition and foreign jurisdiction is not complete, because the rights acquired by Treaty are to be exercised in the foreign country, and not in England. And if it were possible for the Queen to exercise the rights acquired, for example, by the Treaty of Yedo, in Japan itself, I doubt if there would be anything unconstitutional. As a matter of fact, the Queen does not exercise them there; she makes in England authoritative orders as to the manner of their exercise in Japan. Her legislative act takes place in England: it is in fact an extra-territorial act of legislation. But by the Common Law the only extra-territorial power which the Sovereign possesses is in respect of a Crown colony. For countries which Sovereign's come to the Crown by virtue of conquest or cession the Sove- torial power reign may legislate. But the prerogative extends no further. Crown coIn the case of colonies acquired by occupation, although they come within the Queen's dominions, she has no such power. And, therefore, in such cases the authority of Parlia- Authority nement is necessary to enable her to issue her Orders in Council. Take, for example, the Falkland Islands Act of 1843—6 & 7 Vict. c. 13. It recites that, "Whereas divers of Her Majesty's subjects have resorted to and taken up their abode, and may hereafter resort to and take up their abode ... on the Falkland extra-terri limited to lonies. cessary for colonies acquired by occupation. cf. p. 18. The enabling Islands and whereas it is necessary that Her Majesty should be enabled to make further and better provision for the civil government of the said settlements:" and the Act continues- .... "Be it therefore enacted . . . . that it shall be lawful for Her Majesty, by any order or orders to be by her made, with the advice of her Privy Council, to establish all such laws . . . . to constitute such Courts and officers . . . as may be necessary for the peace, order, and good government of Her Majesty's subjects and others within the said . . . settlements . . . .' The question then arises whether, these Treaty rights having been acquired in virtue of the prerogative, the exercise of them could be regarded as analogous to the exercise of power in the Crown colonies, an enabling statute not being required; or whether the case falls within the ordinary principle that any extra-territorial act of the Queen must have the authority of Parliament. Of this principle we have already had another example in the authority granted to exercise jurisdiction over her subjects in countries without regular forms of government. The better opinion seems to be that the ordinary principle should apply. In the case of the Crown colonies, the right of the King to legislate did not follow because the acquisition of territory is part of the prerogative, but because the legislative right was itself part of the prerogative. But there does not appear to be any warrant for the proposition that the right to exercise rights independently of Parliamentary authority must follow from the right to acquire them independently of that authority. We come back, therefore, to the proposition that, although rights may be acquired in virtue of the prerogative, they must be exercised within the law; and the exercise of these comparatively modern rights, which have no connection with, and do not add to, the dominions or dignities of the Crown, would be in fact an extra-territorial act of the Sovereign which the law does not allow. Therefore, to render legal the issue of orders in England for the exercise of rights acquired, and thereafter to be acquired, in foreign countries, an enabling Act was necessary. This enabling Act is known by the name of the "Foreign Jurisdiction Practice prior Act." Prior to the passing of this Act, there were already in to the Act. existence some local foreign jurisdiction Acts, which also empowered the Sovereign to issue Orders in Council for the government of his subjects in the country to which they applied: 3 & 4 Will. iv. c. 93, s. 6 for China, 6 & 7 Will. iv. c. 78 for the Ottoman Dominions. The former enactment was not repealed till it was included in the Statute Law Revision Act of 1874; the latter, said in 1843 to have already become a dead letter, was repealed by the Act of that year. Independently of these Acts, however, it would seem to have been legitimate for the Consuls, acting under the authority of the British Ministers, to exercise the jurisdiction which had been granted under the Treaties; the Queen herself being represented in the country. In 'Hertslet's Treaties' a proclamation of Sir Henry [Vol. vi., p. 232.] Pottinger, the British Plenipotentiary in China, is printed. It is dated Hong Kong, 22nd July, 1843. Annexed to it were "General Regulations, under which the British Trade was to be conducted at the Treaty Ports"; the XIIIth Regulation related to "disputes between British subjects and Chinese"; they were put generally within the jurisdiction of the Consul: and "regarding the punishment of English criminals, the English Government will enact the laws necessary to attain that end, and the Consul will be empowered to put them in force." The Foreign Jurisdiction Act-6 & 7 Vict. c. 94-was passed in 1843, and a complete system was inaugurated by which the [August 24.] Queen was empowered to direct from home the full exercise of her foreign powers. The preamble of the Act recited that, Preamble. "Whereas by treaty, capitulation, grant, usage, sufferance, and other lawful means, Her Majesty hath power and jurisdiction within divers countries and places out of Her Majesty's dominions: and whereas doubts have arisen how far the exercise of such power and jurisdiction is controlled and dependent on the laws and customs of this realm, and it is expedient that such doubts should be removed :" The Act then enacts "that it is, and shall be, lawful for Her Majesty to hold, exercise, and enjoy" the foreign jurisdiction so obtained. In Chitty's Statutes there is a marginal "[sic]" referring to the [Vol. II., p. "it is lawful" of the enacting clause. At first sight it looks as 1219.] Examination of preamble. The doubts were as to the exercise, not the acquisition, of the rights. 53 & 54 Vict. c. 37. Power to be exercised as in conquered countries. Objection to used. if the Law Officers of the Crown had settled that the doubts were not well founded. I think, however, that the section may probably be correctly paraphrased thus: "It is lawful for Her Majesty to hold, and it shall be lawful for Her Majesty to exercise, any power or jurisdiction Parliament, as the Courts are not slow to declare, does not combine omniscience with omnipotence. If a statement of the law is ventured on in a statute, the chances are, so the lawyers say, that it is wrong. But in this case the Earl of Aberdeen assured the House of Lords that the bill was not a crude effort of legislation, but had been framed with the utmost care, and for months had been under the consideration of the Law Officers of the Crown; and indeed the preamble is framed in full accordance with constitutional principles. It does not question the Treaty-making prerogative. The doubts which existed were not as to the acquisition of the rights of foreign jurisdiction, but only as to how far the exercise of them by the Queen was controlled by and dependent on the law of the realm. I do not think that it would have been possible to say that these doubts were not well founded. In the Act of 1890, "to consolidate the Foreign Jurisdiction Acts," the doubts are no more expressed, though the phrase "it is and shall be lawful" is retained. We may now confine our attention to this Consolidation Act. Having legalised the exercise of the foreign power and jurisdiction, the first section proceeds to declare the manner of its exercise. It is, and shall be, lawful for the Queen "to hold, exercise, and enjoy" the foreign jurisdiction obtained by "treaty, capitulation, grant, usage, sufferance, and other lawful means, in the same and as ample manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory." The The reference to cession or conquest is unfortunate. form of words object with which the words were introduced is, however, made clear by the preceding discussion. There was a doubt whether rights acquired by the Sovereign in virtue of the prerogative could be exercised in virtue of the prerogative; it had been settled that they could not be so exercised, the authority of Parliament being necessary. But seeing that they were none the less prerogative rights, when the authority for their exercise came to be given, it was declared that they should in fact be exercised, as the prerogative legislative right was exercised in the Crown Colonies: that is to say, by the orders of the Sovereign in Council. Nevertheless, as I have said, the reference to ceded and conquered territories in a matter of so much delicacy is much to be regretted. The words are misleading to the ordinary British subject who is placed under the jurisdiction, for he is disposed to consider that the Act makes the country in which exterritorial privileges have been acquired to all intents and purposes, so far as he is concerned, a colony of the British Crown. And they are not only misleading to the country by which these privileges have been granted, but are often viewed there as a direct insult to its Sovereign and its Government. Both British residents and nationals attach an undue importance to the words, deeming them, as I have said, to be of direct application; and even Sir Fitzjames Stephen, in his History of the Criminal Law of [Vol. II., p. 58.] England,' seems to express a similar view when he says that the Queen's power of legislation in these countries is unlimited. ་ The meaning of the words, however, is plain. Any jurisdiction which may be acquired, by Treaty or otherwise, is to be exercised in the same way as that jurisdiction is exercised in a conquered or ceded territory. The comparison is not between the State granting the privileges and a conquered country, but between the method of exercising the privileges in the State and of exercising the rights corresponding to them in a conquered country. The rights acquired in one country are not necessarily identical with those acquired in another. The criminal jurisdiction may be complete, or it may be partial; the law may be administered by an English judge alone, or he may sit with native assessors; the law to be administered may be English or it may be native. Whatever the jurisdiction may be, the principle laid down by the section as to the method of its exercise is, that it is to correspond with the method of exercising the same jurisdiction in a conquered country. Two other methods of exercising this jurisdiction occur to me, |