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afford the Consul such assistance as may be required to enable him to cause the laws to be observed by the Dutch when on shore, and to maintain order among the ships." The phrase "persons who have escaped from justice" probably indicates persons who are within the jurisdiction of the Dutch Consul.
In the case of Persia, the whole of the Queen's jurisdiction cf. post, p. 223. rests on the most-favoured-nation clauses of the Treaty of 1857. None of the usual jurisdiction clauses are included in the Treaty; these are to be found in the Treaties entered into by the Shah with other Powers.*
In the Persian Treaties are to be found articles granting reciprocally to Persians in Europe the right of the most-favourednation. This is, I think, the only example of a reciprocal article in any form in exterritorial Treaties.†
The Foreign Jurisdiction Act, and the Applied Acts. It is necessary now to take a brief survey of the provisions of the "Act to Consolidate the Foreign Jurisdiction Acts, 1890" (53 & 54 Vict. c. 37), and of the statutes which by Order in Council may be applied under it to countries where foreign jurisdiction exists.
The preamble recites that, Whereas by Treaty, capitulation, grant, usage, sufferance, and other lawful means, Her Majesty the Queen has jurisdiction within divers foreign countries:
And by the various sections it is provided as follows :—
*See Sir Edward Hertslet's 'Persian Treaties, 1891.'
te.g.-"Dans le Royaume d'Italie les sujets Persans seront également dans toutes leurs contestations, soit entre eux, soit avec des sujets Italiens ou étrangers, jugés suivant le mode adopté dans ce Royaume envers les sujets de la nation la plus favorisée.
"Quant aux affaires de la juridiction criminelle, dans les quelles seraient compromis des sujets Italiens en Perse, des sujets Persans en Italie, elles seront jugées en Italie et en Perse suivant le mode adopté dans les deux pays envers les sujets de la nation la plus favorisée."-Treaty between Persia and Italy, 24th September, 1863, Art. v.
1. That it is lawful for the Queen to hold, exercise, and enjoy s. I, exercise such jurisdiction already, or hereafter to be, acquired in the same of jurisdiction. and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory.
2. That the Queen may exercise jurisdiction over her subjects S. 2, jurisfor the time being resident in or resorting to countries without countries without regular Governments with which exterritorial Treaties might be regular entered into, or who might "suffer" such jurisdiction to be government. exercised.
This provision has already been considered. It is only necessary to add that the jurisdiction in this case differs from the ordinary cases of Treaty jurisdiction in being unlimited.
of acts done
3. That acts and things done in pursuance of the Queen's S. 3, validity foreign jurisdiction are to be considered as valid as if they had in pursuance been done according to the local law then in force in the foreign of jurisdiction. country.
This section gives in a very condensed form the second section of the old Act of 1843. It is based, of course, on the maxim, locus regit actum, applying it to the executive and judicatory acts of persons authorized by the Queen to give effect to her jurisdiction in foreign countries.
The section gives some warrant for the propositions that the legislative origin of English law in such a country as Corea is the act of the King of Corea; and that the Consular Courts there, though exercised in the name of the Queen of England, do in fact sit on behalf of the King of Corea, and form part of his system of judicature.
country to be
In this connection it is to be observed that, strictly speaking, Law of foreign the acts of jurisdiction of the Queen's Consuls are not strictly legal until the forms for legalizing such acts required by the law complied with of the foreign country have been complied with. For example, jurisdiction exercisable. if the foreign country were under a constitutional form of government, and the Sovereign's Treaties did not form part of the law of the land, but required some additional sanction from the Legislature, then the authority of the Consular Courts would not be validly exercised until that sanction had been given: or if the Treaty required promulgation in the form of a law, then not until the promulgation had taken place.
S. 4, evidence
jurisdiction in foreign country.
The fact that the statute recognises the force of the local law is material as correcting the "colonial" tendencies of some of its provisions, notably of the fifth section.
But, seeing that our Colonies are to all legal intents and purposes foreign countries, nothing practical seems to result from the section. Such a point as the following might, however, arise. If there were different rules governing the reception in the English Courts of colonial and foreign judgments, under this section, the rules applicable to foreign judgments would probably apply to judgments of the Consular Courts: because the judge in giving judgment would act in pursuance of the Queen's foreign jurisdiction, and it is to be considered as valid as if it had been given by a Court established by the law of the foreign country.
4. That if in any civil or criminal proceedings in any Court of existence or in the Queen's dominions, or in any Court "held under the authority of Her Majesty" (thereby including the Consular Courts), "any question arises as to the existence or extent of any jurisdiction of Her Majesty in any foreign country," the Court is to send to a Secretary of State, under the seal of the Court or signature of the judge, “questions framed so as properly to raise the question"; the Secretary of State is to send his decision on the question, which for the purposes of the proceeding is to be final; or, in the words of the second clause of the section, he is to return "sufficient answers," which shall be "conclusive evidence of the matters therein contained."
The difficulty contained in this section has already been hinted at.
The words are so wide, the use of the word "decision seems so emphatic, that at first sight the questions which are to be referred to the Secretary of State would seem to include the important one, which we have already discussed, of conflict between the Order in Council and the Treaty. To refer such a point away from the Courts whose proper function it would be to determine it, is so unusual a proceeding, that one is temptednot being in Court-to avail oneself of the Attorney General's statement in the House, that the Bill introduced no changes in the law, and to refer for aid to the third section of the repealed
section in old
statute of 1843. There the words used are different: If in any Form of suit, civil or criminal, "any issue or question of law or of fact Act. shall arise, for the due determination whereof it shall . . . . be necessary to produce evidence of the existence of any such power or jurisdiction.... or of the extent thereof," questions are to be sent to a secretary of state "properly framed respecting such of the matters aforesaid as it may be necessary to ascertain in order to the due determination of any such issue or question": and the answers are to be "final and conclusive evidence .. of the several matters therein contained and required to be ascertained thereby."
Under this section it is abundantly clear that the only ques- Suggested limits of duty tions to be referred to the Secretary of State are questions of of the fact; as to the existence of the jurisdiction in question; as to Secretary of the manner of its exercise; and as to other cognate questions which might not be capable of proof by the simple production in Court of the Order in Council.*
It is suggested therefore that the question whether the claim of jurisdiction in the Order in Council exceeds the grant in the Treaty does, so far as this section is concerned, fall within the purview of the Court before which it is raised, and is not a matter to be referred to the Secretary of State.
Any other construction of this section would turn it into a piece of direct legislation of Parliament with reference to the Consular Courts, imposing on the Judge a duty of referring certain questions raised before him to the Secretary of State instead of determining them. If, however, the construction I have pointed out is sound, the Secretary of State is merely empowered to assist the Consular Court in a question of evidence.
It may be noticed that the discussion of the question is not necessarily confined to the Consular Courts. It might very well be raised in the English Courts in an action on a
*In Hervey v. Fitzpatrick (23 Law Journal Reports, Chancery, 564) a question was put by the Court to the Secretary of State for the Colonies: "whether Her Majesty has at any time exercised any jurisdiction with respect to the administration of personal estates of persons dying intestate in Cape Coast Town; and, if so, to what extent and in what manner and through what Court or officer such jurisdiction has been exercised."
S. 5, power to extend certain enactments by Order.
judgment of a Consular Court; for although in such an action the old defence of want of jurisdiction is by this time very much curtailed, the presumption prevailing that the Court was within its jurisdiction, it is not so clear that a defence attacking the judgment on the ground that the grant of jurisdiction was ultra vires the Authority which established it, would not prevail.
On the Continent, in an action on a judgment of an English Consular Court, the defence certainly could be raised, and on the hypothesis of the Order in Council being ultra vires would be sustained.
5. That the Queen shall have power to extend the operation either wholly or in part of certain enactments to countries in which she has foreign jurisdiction: "Thereupon those enactments shall, to the extent of that jurisdiction, operate as if that country were a British possession, and as if Her Majesty in Council were the Legislature of that possession."
The enactments referred to are contained in the first schedule to the Act. They are
The APPLIED I. 12 and 13 Vict. c. 96. An Act to provide for the prosecution and trial in Her Majesty's Colonies of offences committed within the jurisdiction of the Admiralty.
within jurisdiction of the Admiralty to be tried by Consular Court.
The extension of this Act to a Consular Court gives it jurisdiction over all persons charged in the country in which it is established with offences committed on the sea, or in places within the jurisdiction of the Admiralty.
In the Colonies the persons charged are to be dealt with in the same manner as if the offences had been committed on waters "situate within the limits of any such Colony, and within the limits of the local jurisdiction of the Courts of criminal justice of such Colony."
* I have endeavoured to give the effect of these statutes after they have been applied, by making the necessary alterations in the words and introducing the necessary terms. It is not always easy to do this with certainty. Some of the changes necessary for working the Acts are made in the Orders in Council by which the statutes are applied. It is to be observed too that the Sovereign may, under the section, make such exceptions to, adaptations or modifications of, these statutes as she thinks fit. For the schedule of Orders in Council which have been made, as well as for the modifications of the Acts, the reader is referred to Mr. Tarring's work on the subject.