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summonses to English defendants, to compel the attendance of English witnesses, and provided in fact with all the machinery necessary to an effective Court of law. Such a Court would be
validly established under the Foreign Jurisdiction Act, and its rules would be properly provided by Order in Council.
The Treaty with the Netherlands-given in the Appendix- Example. which gives a certain amount of jurisdiction to the Consuls off. P. 233. each country in the matter of sailors' disputes in their respective Colonies, is in fact an example. It is not quite clear, however, that an Act of Parliament would not be necessary to enable the Treaty to be carried into effect in the English Colonies.
We have now established the complete chain which supports this extra-territorial jurisdiction of the Queen.
An Englishman in Japan-to take a concrete case: a certain Complete amount of power which the Emperor would otherwise exercise which exterriover him ceded to, and accepted by, the Queen of England; all foriality rests. other sovereign powers not ceded remaining with the Emperor of Japan. The extent of the ceded powers defined by the Treaty of Yedo—or, strictly speaking, by the group of Japanese Treaties, under the most-favoured-nation clause.
The ability to accept these powers depends on the prerogative of the Crown, and the right to exercise them is vested in Her Majesty by the general enabling Act of the British Parliament. The extent to, and the manner in which, they will be exercised is declared by Her Majesty in various Orders in Council.
f. post p. 54.
The Relation of the Courts to the Queen's Foreign
AN important point remains to to be considered, which Position of subjects with follows naturally on to the preceding discussions. For con- regard to the venience it may be thus stated: what is the position of a British Queen. subject in an Oriental country vis-à-vis his own Government? I say the question may be stated thus for convenience,
If power exercised exceed power granted,
it is wrong
both as to
because what has gone before shews that the British subject has nothing to do with the Sovereign of England, except through the intermediate action of the Sovereign who has granted the privileges by Treaty. If jurisdiction had been conferred on the Queen over foreigners, precisely the same question would arise, the accurate form of which is: what is the position of the person over whom the jurisdiction is exercised vis-à-vis the Sovereign exercising the jurisdiction ?
Seeing that the jurisdiction exists by Treaty, and is limited and defined by Treaty, it is possible to imagine the exercise of some power which depasses the limits and definitions. This, evidently, gives cause of complaint to the Sovereign of the country; but does it not also give a cause of complaint to the person against whom it is exercised? And if it does, what is his remedy?
If it is wrong quoad the foreign Sovereign because the grant Oriental Sov- of jurisdiction has been exceeded, it must also be wrong quoad ereign and the person, because the jurisdiction claimed over him is nonexistent.
One remedy lies on the surface; he may seek the protection of the Government of the country, and request its intervention. But is there not another remedy? If the case in question arose before a Court, could he not plead to the jurisdiction? or if it were a case of exercise of power on the part of the Executive wrongfully authorized by the Sovereign, is there not a wrong done for which he may claim redress, the plea of the Sovereign's command being bad in law? Shortly, in whatever form the question is raised, have the English Courts, whether Consular or otherwise, any power of supervision over the exercise of the Queen's foreign jurisdiction?
What remedy is there if an Order in Council, under which any power or jurisdiction has been exercised, exceeds the provisions of the Treaty ?
On general principles it would seem that the Court itself, before which the matter comes, could enquire into its own jurisdiction, and could pronounce on the validity of the Order in Council pretending to confer the jurisdiction claimed to exist. It has been stated, and the argument supporting the contention
power of Col
appears to be sound, that the Courts in any Colony may be Analogy of called upon to adjudicate upon the validity or constitutiorality onial Courts. of any Act of the Colonial Parliament.*
The argument is that if the colonial law really contradicts the provisions of an Act of Parliament extending to the Colony in question, of the two commands, the judges would be bound to obey that of the higher authority-the Imperial Parliament.
And so in the case of the Consular Court, if the Order in Council exceeds the provisions of the Treaty, the Sovereign's command must be over-ridden by the general law. The only power which the Sovereign is permitted to exercise in a foreign country by means of an extra-territorial command is the power obtained by Treaty. The law knows of and sanctions no other.
And therefore in this case also there are two commands to the Judge: the Sovereign's as expressed in the Order in Council, and that of the Common Law. And as before the higher command-that of the law-must prevail.
In the case of The Fox (Edwards' Admiralty Reports, Authorities. p. 311), a precisely analogous question was considered by Sir W. Scott: "What would be the duty of the Court under Orders in Council that were repugnant to the law of nations?" It was contended on one side, that the Court would at all events be bound to enforce the Orders in Council; on the other, that the Court would be bound to apply the rule of the law of nations adapted to the particular case, in disregard of the Orders in Council. The learned Judge declared that the Court would be bound, if such an occasion arose, to administer the law of nations. The peculiar nature of the "higher command" in this case introduces, it is true, the relations between the Government and foreign Powers; but the principle, it is contended, is precisely analogous to that applicable to conflicts between the Colonial and Imperial Legislatures; and both seem to be analogous to the question in hand.
It is important at this point to repeat the argument that the commonly received interpretation of the Foreign Jurisdiction Act is fallacious. That Act did not create the foreign jurisdic
*Dicey on the Law of the Constitution,' p. 100.
tion of the Queen; it only legalises her exercise of it, and declares how it shall be exercised. Nor, when it says that the jurisdiction may be exercised as if the jurisdiction were to be exercised in a conquered country, does it pretend to say that the Queen may exercise in such a country as Japan, for example, all the jurisdiction which she exercises in a conquered country. The Act only declares that she may exercise the jurisdiction which the Treaty gives her in the same way as she exercises similar jurisdiction in a Crown Colony. To take the simplest possible case: if the criminal jurisdiction over British subjects were vested in the British authorities and the native Courts conjointly, an Order in Council giving the British Consul authority to try such cases by himself would clearly be beyond the Treaty grant, and it could not be contended that the Foreign Jurisdiction Act warranted the Order.
And the same rule must evidently apply to more complicated
It is important, however, to see whether the statute itself provided by provides any remedy. The twelfth section of the Act of 1890 seems to have an important bearing upon the question.
The section provides, in the first place, that if any Order in Council made in pursuance of the Act is repugnant to the provisions of any Act of Parliament extending to British subjects in any foreign country, or to any Order made under the authority of any such Act, it is to be read subject to that Act or Order, and is to be void to the extent of the repugnancy.
Secondly, that an Order in Council is not to be deemed void on the ground of repugnancy to the law of England unless it is repugnant to the provisions of some such Act or Order.
The section thus extends to the Queen's legislation for her subjects in Oriental countries the principles established with regard to Colonial legislation by the "Colonial Laws Validity 28 & 29 Vict. Act, 1865," sections 2 and 3. That law was passed to do away c. 63.
with the doctrine, supposed to be applicable to Colonial legisla-tion, that it must not be based on principles at variance with the "fundamental principles" of English law. This vague doctrine was supposed to apply both to the prerogative legislation of the
Sovereign for Crown Colonies, and to Acts of the Colonial Legislatures.
The effect of the twelfth section on the Queen's Orders in respect of her foreign jurisdiction is therefore to establish two broad principles: first, that the Orders cannot alter Acts of Parliament extending to British subjects in Oriental countries; secondly, that, in making the Orders, the Queen is not bound to proceed on the principles of English law, but may make such laws as the occasions seem to demand, so long as the Acts of Parliament above mentioned are not infringed.
There seems, in the first place, little doubt that, subject to the construction of the fourth section, the provisions of this twelfth section are virtually directions to the Consular Courts (and of course to the English Courts if the question arose there), in case the validity of Orders in Council should be called in question before them. With regard to the first case, repugnancy to Acts of Parliament, there is not very much difficulty. The word "extending," however, should probably be read "extended" or "applied," because there is, as I have said, no direct legislation with regard to subjects in these Oriental countries, but only a series of statutes contained in the Schedule to the Act, which may be extended to them by Order in Council.
The following case will illustrate the application of the first principle.
The sixth section of the Act sanctions the deportation of persons charged with offences cognisable by a British Court in a foreign country, for trial to a British possession, the criminal Court of the possession being authorized in that behalf by Order in Council. If an Order in Council should authorize the trial of prisoners deported from Corea by the Governor of Hong Kong instead of by the Court of that Colony, this would be repugnant to the Act of Parliament, and the Order would be void to that extent, being to be read subject to the statute. And thus, no Court being authorized, the Supreme Criminal
An example of the way in which attempts were made to test the validity of Colonial laws by means of this doctrine is to be found in Bank of Australasia v. Nias (16 Queen's Bench Reports, at pages 731, 734).