Council, in dismissing last week an applica tion on' behalf of Mrs. Carew for special Texve to appeal, gave a decision of considerable importance with regard to the meaning and effect of the Foreign Jurisdiction Act 1890. It will be remembered this year tried and convicted of the murder that Mrs. Carew was at the beginning of of her husband in the British Court for at Yokohama. Yokohama being thin the Empire of Japan, the Queen would, of course, have no jurisdiction to establish a court of justice there if it were not that, by clause's of the Treaty made in 1858 between the Queen and the Tycoon of Japan, it was provided that British subjects in Japan. should be tried and punished by the Consul, or other public funetionary appointed thereto, recording to the laws of Great Britain." There was formerly considerable doubt whether the Queen could, by virtue of her prerogative, exercise any jurisdiction over her subjects in a foreign country, That question is now merely of academic interest, for Parliament has expressly conferred on her the power to exercise such jurisdiction. Sect. I of the Foreign Jurisdiction Act 1890 (which is mainly a codification of the earlier statutes on the subject) provides that: It is and shall be lawful for Her Majesty the Queen tw hold, exercise and enjoy any jurisdiction which Her Majesty now has or may at any time hereafter have within a foreign country in the same and ample manner as diction by the cession or conquest of if Her Majesty had acquired that ju tory." The decision of the Privy Council in Mra. Carew's case turned on the meaning and effect of this section.
Mrs. Carew was tried and convicted by a jury of five persons, and it was cuntended, in support of her petition for leave to appeal, that the jurisdiction, which the Queen had overlier subjects in Japanwas the jurisdiction which is granted to her by the treaty of 1858—namely, a jurisdiction to try and punish them according to the laws of Great Britain "—and that since it is not in accordance with the laws of Great Britain that a person accused of a capital felony should be tried by a jury of five, the verdict was a nullity and ought to be quashed.
The Judicial Committee, however, consisting of the Lord Chancellor, Lord Hobhouse, Lord Morris, Sir Richard Couch, Sir Henry Villiers, and Sir Henry Strong, came to the conclusion that, by virtue of sect. I of the Foreign Jurisdiction Act 1890, the Queen is enabled, not only to exercise in the most ample' manner any jurisdiction which she may have either by treaty or otherwise in a foreign country, but also to ttiake Jaws by Orders in Council for the government ut her subjects in such countries and, since the Order in Council relating to Japan provides that the jury in the British Court for Japan shall consist of five jurors, they decided that the point raised on behalf of Mrs. Carew was untenable, and declined tallow the matter to be argued on appeal. The Lord Chancellor, in delivering the judgment of the Board, stated that the Foreign Jurisdiction Act 1890 gave the Queen power to exercise jurisdiction in foreign countries "as though she had obtained those countries by cession or conquest." It is difficult to understand how the words of the section, which seem plain and simple enough, can be made to bear the meaning which the Judical Committee has placed on them, for the section provides that the Queen may exercise any jurisdiction which she may have ina foreign country in the same and as ample a manner as if she had obtained that jurisdiction by cession or conquest of territory, and it does not purport to extend or enlarge in any way such jurisdiction.
In the case of Japan, therefore, the Act would, if it were not for the decision of the Privy Council, appear to enable Her Majesty the exercise in the most ample manner the jurisdiction which she has under the treaty of 1858—namely, the jurisdiction to try and to punish British subjects according to the lowa of Great Britain. The Judicial Committee, however, have decided, and their decision is final, that section I of the Foreign Jurisdiction Act confers on the Queen power to try and punish her subjects in Japan according to any laws which she may be pleased, by Order in Council, to ordain.
It is curious to note that the construction which the Judicial Committee have, without hesitation, placed on the statute is a construction which the late Mr. W. E. Hall, who was, no doubt, a very eminent authority on the subject, considered clearly impossible. At page 11 of his Treatise on the Foreign Jurisdiction of the British Crown, referring to the language of sect. I of the Foreign Jurisdiction Act 1590, he says: "It is unnecessary to say that th language docs not assimilate the jurisd tion exercised in a foreign country, either in nature or degree, to that which belongs to the Crown in a conquered territory." But that is precisely the effect which the Judicial Committee have given to the see: tion. They decided that the jurisdiction exercised in a foreign country is similar in all respects to that exerci-ed in connored territory. It is certainly remarkable that a construction which Mr. Hall rejected as obviously impossible should have been accepted by the Judicial Committee as so-clearly correct that it would not be proper even to give leave fur the question to be argued.—Law Times, 24th July.
Text read from the printed page and cleaned; old type leaves the occasional error.