Punishment. s. 7. Provisions as to place of punishment of persons convicted. s. 8. Validity of deportation orders. s. 9. Power to diction to The evidence is to be received by the Court in the possession according to the law and practice of that Court, as if the witness had been examined at the trial. Notwithstanding the above provisions as to the punishment of the offender according to the law administered by the Court in the possession, it is provided that that Court " shall admit and give effect to the law by which the alleged offender would have been tried by the British Court in the foreign country in which the offence is alleged to have been committed, so far as that law relates to the criminality of the act alleged to have been committed, or the nature or degree of the offence, or the punishment thereof, if the law differs in these respects from the law in force in that British possession." The sixth section does not affect any law by which an offence committed out of the Queen's dominions may be tried and punished within the dominions. The section, as has been already pointed out, is not operative until an Order in Council designates the possession to which persons may be deported. 7. That the place of punishment of persons convicted before a Consular Court is also to be subject to directions given in the Order in Council. The conviction and sentence are to be of the same force in the place in which the sentence is carried out as if they had been pronounced by a competent Court of that place. 8. That where an Order in Council authorizes a Consular Court to order the removal or deportation of any person, the removal or deportation, and any detention for the purposes thereof, according to the provisions of the Order, are to be considered as lawful as if the order of the Court were to have effect wholly within its jurisdiction. 9. That the Queen in Council may confer on "any Court in assign juris- any British possession, or held under the authority of Her Majesty," any jurisdiction, civil or criminal, original or appellate, which may lawfully be conferred by Order in Council on any British Court in any foreign country: and may make all necessary provisions and regulations respecting the same. British Courts in cases within the Act. S. 10. 10. That the Queen may revoke or vary any Order in Council made under the Act. Orders to be Parliament. II. That every Order in Council made under the Act shall be s. 11. laid before both Houses of Parliament forthwith after it is made; laid before or if Parliament is not in session, forthwith after the commencement of the next session, "and shall have effect as if it were enacted in this Act." In what cases void for 12. That if any Order in Council "is in any respect repugnant s. 12. to the provisions of any Act of Parliament extending to Her Orders in Majesty's subjects" in the foreign country to which the Order Council applies, or to any regulations made under the authority of such repugnancy. an Act, or having in that country the force and effect of such an Act, the Order is to be read subject to that Act or regulation, and shall be void to the extent of such repugnancy. But unless it is repugnant to such an Act or regulation, it is not to be deemed void "on the ground of repugnancy to the law of England." This section has already been considered. ante, p. 34. Provisions for 13. That proceedings against persons "for any act done in s. 13. pursuance or execution, or intended execution," or "in respect protecting of any alleged neglect or default in the execution," of this Act persons acting under the (or of any of the repealed Acts), or of any Order in Council Act. made under it, or of any jurisdiction which Her Majesty has in foreign countries "by Treaty, capitulation, grant, usage, sufferance, or other lawful means," shall not be instituted (a) In any Court within Her Majesty's dominions, unless it is commenced within six months after the act, neglect, or default complained of; or, where the cause of action arose out of the dominions, within six months after the parties to the proceeding have been within the jurisdiction of the Court in which it is instituted; or, in case of a continuing injury or damage, within six months after the ceasing thereof: (b) In any Consular Court, subject to the additional proviso that the cause of action arose within its jurisdiction. In such a proceeding, tender of amends before it was commenced may be pleaded in lieu of or in addition to any other plea. In case of tender of amends, whether before or after suit, if the plaintiff does not recover more than the sum tendered, the defendant is to be entitled to taxed costs, as between solicitor and client, as from the time of the tender. This provision is not to affect costs on any injunction in the proceeding. s. 14. Jurisdiction over ships in certain Eastern seas. s. 15. Subjects of Indian princes. 14. That the Queen in Council may make laws for the government of her subjects on board ships within one hundred miles. from the coasts of China or Japan, "as fully and effectually as any such law might be made by Her Majesty in Council for the government of Her Majesty's subjects being in China or Japan." 15. That where an Order in Council under the Act extends to persons enjoying Her Majesty's protection, that expression shall include all subjects of the several Princes and States in cf. post, p. 154. India. s. 16. 16. That in the Act The expression "foreign country" means any country or place out of Her Majesty's dominions; The expression "British Court in a foreign country" means any British Court having jurisdiction out of Her Majesty's dominions in pursuance of an Order in Council, whether made under any Act or otherwise; The expression "jurisdiction" includes power. 17. That two Acts mentioned in the second schedule may be revoked or varied by Order in Council. These two Acts are of that class to which reference has already been made, by which the laws in force in certain Colonies are extended in their application to British subjects in adjacent territories. The Acts in question are 24 & 25 Vict. c. 31: "For the prevention and punishment of offences committed by Her Majesty's subjects within certain territories adjacent to the Colony of Sierra Leone." 26 & 27 Vict. c. 35: "For the prevention and punishment of offences committed by Her Majesty's subjects in South Africa." 18. That the Acts mentioned in the third schedule are repealed. In addition to the old Foreign Jurisdiction Acts of 1843, 1865, 1866, 1875, and 1878, which are consolidated by the new Act, the following Acts are repealed: 20 & 21 Vict. c. 75: "To confirm an Order in Council concerning the exercise of jurisdiction in matters arising within the Kingdom of Siam.” 33 & 34 Vict. c. 55: "To vest jurisdiction in matters arising within the dominions of the Kings of Siam in the Supreme Court of the Straits Settlements." 39 & 40 Vict. c. 46, secs. 4 & 6, whereby the subjects of cf. post, p. 154. certain Indian princes were made amenable to certain Orders in Council. Orders in Orders in Council issued in pursuance of any of the repealed Existing Acts which were in force on the 4th August, 1890, are to con- Council. tinue in force until altered or revoked by the Queen in Council; and Orders referring to any repealed Act are to be construed as referring to the corresponding enactment of the Consolidation Act. VIII. The Special Forms of the Jurisdiction. THE Act of Parliament gives powers to the Sovereign with regard to the exercise of her foreign jurisdiction in very general terms. We have now to examine the special forms of it which the Sovereign has acquired by different Treaties. For very obvious reasons the grants in the different Treaties are never identical. This remark applies even to the Treaties with China and Japan, which were both negotiated by the Earl of Elgin in the same year, 1858. For convenience of reference the jurisdiction clauses of the several Treaties have been set out in full at the end of the volume. For our present purpose it is necessary only to refer to the broad principles contained in them. The cases which are dealt with in the Treaties are chiefly the Cases following: Criminal jurisdiction. Crimes by subjects against subjects. included in the jurisdiction clauses of the Treaties. G Cession of territory. Protection includes cession of Civil jurisdiction. 6. Action brought by a subject against a subject. The term "national" is used to denote a subject of the country in which the Treaty rights are acquired : subject," to denote a subject of the Queen: "foreigner," to denote a subject or citizen of a third Power. The method of dealing with these cases varies, as I have said; but some attempt at collating the principles may be made. Taking complete cession or conquest of territory, the case in which the sovereign jurisdiction over subjects, foreigners and nationals alike, is absolute and unlimited, as the starting point, the next degree of foreign jurisdiction is to be found in a “protected" State. In this case there is usually complete cession of jurisdiction without cession of territory. It may, and generally jurisdiction. does, embrace subjects, foreigners, and nationals; thus, in the agreement with the Barolongs, in South Africa, the Chief of the people says, "I give the Queen to rule in my country over white men and black men"; and after defining the several powers he concludes, "and effectually to confirm the government and authority which I give to the Queen by this agreement." Distinction between protection and exterritoriality. Main idea involved in exterritori ality: the law of defendant's nationality applied. Passing from protection in its various degrees, all of which include some jurisdiction over others than subjects of the protecting States, we come to exterritoriality in its various degrees, which is practically confined to the subjects of the country acquiring the rights by Treaty; jurisdiction over foreigners being incidental only, and limited to cases in which one of the parties at least is a subject. This indeed gives us the fundamental principle of exterritoriality, which is that the defendant's nationality is in all cases to determine the law to be applied to the case, and the judge who is to apply it. The grant in its broadest form is "jurisdiction over the persons and property of British subjects;" but it is not accurate to assume this as the general definition. |