S. 4, evidence of existence or extent of 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 in the Queen's dominions, or in any Court "held under the jurisdiction authority of Her Majesty" (thereby including the Consular in foreign country. 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 tempted— not 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in the House, that the Bill introduced no changes in the law, and to refer for aid to the third section of the repealed statute of 1843. There the words used are different: If in any Form of section in old 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." State. 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. ACTS. 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. Offences within jurisdiction of the The extension of this Act to a Consular Court gives it jurisdiction over all persons charged in the country in which it Admiralty to is established with offences committed on the sea, or in places be tried by within the jurisdiction of the Admiralty. Consular Court. 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. Consular coincide with The limits of the jurisdiction of the Consular Courts, in the Limits of absence of any express provisions in the Treaty, must obviously jurisdiction of be identical with the limits of the jurisdiction of the national Courts must Courts. In determining how far the territorial waters extend, it would seem that the limits of the jurisdiction should be governed jurisdiction of foreign by the law of the country, though the nature of the jurisdiction Sovereign. would be governed by the law of England. For example, if in Japan there were a law similar to the English "Territorial Waters Jurisdiction Act," of 1878, asserting the Emperor's jurisdiction over a certain portion of the open seas, then the jurisdiction of the Consular Courts would be concurrent: but if there were no such sovereign claim, the Consular Court could cf. post, not rest a claim to jurisdiction within one marine league from p. 100. the shore on the English Territorial Waters Act. Its jurisdiction would extend no further than the jurisdiction of the Sovereign, which was declared generally by the majority of the Court in the case of "The Franconia to extend no further than low water mark. But within the area of jurisdiction, how far soever it may extend, the administration of justice will be governed by the law of England. The jurisdiction of the English Consular Courts over foreigners in territorial waters is a matter requiring separate consideration. By the remaining sections of the statute as applied to a foreign country, it is provided That punishment on conviction is to follow the law of England: That where the death in the country follows from injuries inflicted on the sea, the charge of murder, manslaughter, or of being accessory, is to be tried as if the offence had been wholly committed in the country: That where a person is charged in the country with murder, manslaughter, or as accessory, and the death has followed at sea, the offence is to be held as having been wholly committed upon the sea. II. 14 and 15 Vict. c. 99, ss. 7 and 11. An Act to amend the law of evidence. All proclamations, treaties, and other acts of state of any Proof of foreign State or of any British Colony: all judgments, decrees, Jud judgments, &c. orders, and other judicial proceedings of any Court of Justice in * R. v. Keyn (Law Reports, 2 Exchequer Division, p. 63). Documents admissible without proof of seal.. Offences under Merchant any foreign State or in any British Colony or of any British Consular Court: all affidavits, pleadings and other legal documents filed or deposited in any such Court are, by the application of this Act, provable in the Consular Courts by certified copies purporting to be sealed or signed by the proper authority respectively, without further proof of the genuineness or authentic character of the seal or signature. Documents which are admissible in evidence in any Court in England, Wales, or Ireland, without proof of the genuineness or authentic character of the seal or signature, are to be admitted in evidence to the same extent and for the same purposes in the Consular Courts. III. 17 & 18 Vict. c. 104, Part X. Act, 1854. The Merchant Shipping By the application of Part X. (properly speaking, sections 517 to 526 inclusive), all offences and claims under the Merchant Shipping Act Shipping Act, 1854, are put within the jurisdiction of such of the to be tried by Consular Courts-in the absence of any more express direction in the Order in Council-in which offences of a like character are ordinarily punishable. Consular Court. For the purpose of giving jurisdiction under the Act as applied, offences are deemed to have been committed, and causes of complaint to have arisen, either in the place where it was actually committed or arose, or in any place in which the offender or person complained against may be. Ships in nearWhere the jurisdiction of the Consular Court for any purpose lying waters. extends to the sea coast, or abuts on or projects into any bay, lake, river, or other navigable water, the jurisdiction shall include all ships lying or passing off such coast, or in or near such navigable water, and all persons on board or for the time being belonging to such ships. Service of summonses or other documents in legal proceedings under the Act as applied, may be made personally, or at the last place of abode, or by leaving them on board the ship with the person being, or appearing to be, in command. Orders for the payment of seamen's wages, penalties, or other sums of money, made against the master or owner of a ship may be levied by distress on the ship. Seamen's wages. Application of penalties. Penalties for which no specific application is provided may be applied either in compensating persons for any wrong or damage they may have suffered by the act penalised, or in payment of the expenses of the proceedings. Subject to these |