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Examination of preamble.
were as to the
exercise, not the acquisition, of the rights.
53 & 54 Vict. c. 37.
Power to be
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, exercised as in and enjoy" the foreign jurisdiction obtained by "treaty, capituconquered countries. lation, 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 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
Objection to used.
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. 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,
cf. p. 24.
Exact meaning of first section.
and neither of them are satisfactory. The British community in
But, in spite of this, and although I think the words do not
"It is and shall be lawful for Her Majesty the Queen to hold,
"That it shall be lawful for Her Majesty the Queen, by any
order or orders to be by her made, with the advice of her Privy Council, to exercise any jurisdiction which Her Majesty now has or may at any time hereafter have within a foreign country."
Another question has to be considered: is there any Parlia- Enquiry if mentary authority over British subjects in these foreign countries, has any direct in addition to the Queen's authority by Order in Council? Could authority. Parliament pass an Act, assuming the object of it to fall within the Treaty grant, and extend its operation to these countries? I assume the object of the Act to be within the Treaty grant, in order to avoid any further reference to the notion that Parliament can legislate for British subjects anywhere. The rights acquired by Treaty are the Queen's rights, and Parliament has apparently excluded itself from touching their exercise by vesting it entirely and completely in the Sovereign. But the same might be said with regard to conquered or ceded Colonies. The legislative right which belongs by prerogative to the Sovereign does not oust the jurisdiction of Parliament. Lord Mansfield said that they were the King's dominions in right of his Crown," and therefore necessarily subject to the legislative power of the Parliament of Great Britain" (Campbell v. Hall, 20 State Trials, 323).
But this is evidently because of the "transcendent and absolute" power of Parliament within the King's dominions. But the countries in which these extra-territorial rights exist are not within the dominions, and therefore it would appear that their exercise does not of necessity fall within the powers of Parliament. This point will be referred to in a subsequent post, p. 50. section, as it involves a theoretical consideration of the whole question of extra-territorial legislation.
At first sight, the Foreign Jurisdiction Act seems opposed to this principle; it has the appearance of legislating for British subjects in these foreign countries: more especially in the sixth section, which provides for sending persons charged with offences for trial to a British possession..
When, however, the terms of the section are examined, it will The Act does be seen simply to confer a power on the Queen to authorize by any direct Order in Council the Consular Court to send the prisoner for legislation
trial, and the Colonial Court to hold the trial. And the same is true of the fifth section, which enables the Queen to apply certain specified statutes to the foreign countries in question; and of the seventh, sanctioning deportation to Colonies to be specified by Order in Council as places where punishment is to be inflicted. These sections are practically inoperative so long as the Sovereign does not act upon them. They are not unlike the Act which deals with purchase in the Army, which became inoperative by a refusal on the part of the Queen to specify by Order in Council, as the Act permitted her to do, the price at which commissions in the Army could be bought and sold.
But of direct legislation there is none, and I do not think it would be competent for Parliament to pass any.
Whether these sections authorize the Queen to do acts which the Treaties do not authorize is another and more serious question, to be presently discussed.
It is important to notice how wide the enabling provisions of the statute are; and it is not immaterial to the subject to note that on its civil side it is not outside the bounds of possibility for foreign jurisdiction to be acquired in a European, or "civilised," country; and if acquired, the terms of the Foreign Jurisdiction Act, including its reference to "ceded and conquered territories," would be the sufficient and proper authority for its exercise by the Queen. In France the Courts as a general rule refuse to entertain civil suits between foreigners: they are remitted to their own tribunals. Now, it is quite possible that, owing to this and to the strict rules of jurisdiction which govern the English Courts in civil actions, a dispute between two Englishmen in Paris could not be tried either in France or in England, and that the parties would therefore be without redress. Such a state of things might be remedied by allowing the Queen's Consuls in France to act as arbitrators in such disputes. If both parties consented to such an arrangement, there would be no question of Treaty or Act of Parliament. But the Queen might acquire, by Treaty with the French Government, the right to give her Consuls jurisdiction in such cases over her subjects, and to this end to set up Consular Courts, with powers to issue