Conclu jurisdic civil and criminal, original and appellate, as they respectively possess from time to time in respect of matters occurring within British Bechuanaland, and the judgements, decrees, orders, and sentences of any such court made or given in the exercise of the jurisdiction hereby conferred may be enforced and executed, and appeals therefrom may be had and prosecuted, in the same way as if the judgement, decree, order, or sentence had been made or given under the ordinary jurisdiction of the court. But the jurisdiction hereby conferred shall only be exercised by such courts, and in such manner and to such extent, as the Governor of British Bechuanaland shall by proclamation from time to time direct.' The Matabeleland Order in Council, 1894, now superseded by the Southern Rhodesia Order in Council, 1898, was framed on similar principles, and the same principles have been followed in the Orders which have since been made for different parts of South, East, and West Africa. They set up high courts and make administrative and legislative arrangements hardly distinguishable in their character from those adopted for regions which have been formally incorporated in the King's dominions.1 The general conclusions as to the classes of persons and sions as to cases with respect to which jurisdiction may be exercised by tion under courts established by Orders in Council in accordance with Foreign Jurisdic- the Foreign Jurisdiction Acts appear to be— tion Acts. 1. The principles on which the jurisdiction rests do not exclude its exercise with respect to any classes of persons being the subjects, or under the authority, of the State which establishes the court, or of the State in whose territory the court is established, or any classes of cases, whether civil or criminal. 2. But in practice the jurisdiction, being required mainly for the protection of foreigners, is not usually exercised in 1 See the Africa Order printed in Stat. R. and O. Rev., vol. v. The Orders in Council made for the hinterland' protectorates adjoining British colonies on the West Coast of Africa have, instead of defining the jurisdiction exercisable in protectorates, transferred the powers of legislating for them to the legislature of the adjacent British colony. The legislation under these powers is either specific or simply applies the colonial law. In some cases jurisdiction appears to be exercisable over all persons. In other cases it is left with the chiefs, subject to the direction and control of the British authorities. disputes between natives of the country or in criminal proceedings which do not affect foreigners. 3. As respects persons who are not subjects either of the State which establishes the court, or of the State in whose territory the court is established, the exercise of the jurisdiction, according to the view adopted in framing most of the Orders in Council, requires consent, express or implied, on the part of those persons or of the States to whom they belong, but a general consent to the exercise of jurisdiction over all or any of the subjects of any State may be implied by acquiescence, or by such acts as the recognition of a protectorate. 4. In the case of certain protectorates in Africa the jurisdiction has been given in more general and indefinite terms, and apparently is capable of being exercised over any persons and in any cases over and in which territorial jurisdiction is exercisable.1 5. The Order in Council can limit and define in any manner which may be considered expedient the classes of persons and cases with respect to which jurisdiction is to be exercised. In considering the application of the foregoing principles Application of to India, the chief differences to be borne in mind are:principles (1) The limitations on the powers of the Indian Legisla- to India. ture, by which is meant the authority described in Acts of Parliament as 'the Governor-General in Council at meetings for the purpose of making laws and regulations'; (2) The special relation in which the Government of India, as representative of the paramount Power, stands to the Native States. 1 The references to native law and custom in some of these Orders clearly show that jurisdiction was intended to be exercised under them in cases between natives of the country. For a very curious illustration of the mode in which this kind of jurisdiction has been exercised on the West Coast of Africa, see Fanti Customary Laws, by J. M. Sarbah (London, 1897). Powers of The Indian Legislature is the creation of statute. Its powers are derived wholly from Acts of Parliament, and are limited with reference to persons, places, and subject-matter by the Acts of Parliament by which they are conferred. Indian Legislature. Section 43 of the Government of India Act, 1833 (3 & 4 Will. IV, c. 85), empowered the Governor-General in Council to make, subject to certain restrictions, laws and regulations for repealing, amending, or altering any laws or regulations whatever then in force, or thereafter to be in force, in the said territories (i.e. the territories under the government of the East India Company), or any part thereof, and to make laws and regulations for all persons, whether British or native, foreigners or others, and for all courts of justice, whether established by His Majesty's charters or otherwise, and the jurisdictions thereof, and for all places and things whatsoever within and throughout the whole and every part of the said territories, and for all servants of the said Company within the dominions of princes and States in alliance with the said Company' (i. e. the East India Company).1 1 As to the powers exercisable under this section the following opinion was given to the East India Company in 1839 :— 'We think the Legislative Council has power to make laws to provide for the punishment of offences in cases here contemplated. The Legislative Council has power to pass laws enacting and declaring that crimes and offences committed in the territories of princes or States in India adjacent to the British territories by persons, the native subjects of and owing obedience to the laws of such British territories, shall be liable to be tried and punished as if committed within the local limits of the British territories. Crimes and offences against the State, and the crimes of forgery, coining, &c., might frequently be committed without the limits of the Company's territories. Indeed, by the existing laws, British subjects are liable to be tried in the supreme courts for offences committed anywhere within the Company's limits. We do not consider the affirmative clause in 3 & 4 Will. IV, c. 85, s. 43, giving the power to the Legislative Council to make laws "for all servants of the said Company within the dominions of princes and States in alliance with the said Company," as restraining the Legislative Council from making laws for the purposes in question, but as either perhaps unnecessary or as meant to remove all doubt as to the power to bind servants of the Company in the particular case specified, who might not be (as occasionally happens) either natives or subjects of the British territories or British subjects of Her Majesty. 'We think that the Legislative Council has power in the same manner This section has been superseded by the Indian Councils Act, 1861, and has been repealed, but is still of importance as the enactment under which the Penal Code of 1860 was made. The enactments on which the powers of the Indian Legislature now depend are the Indian Councils Act, 1861, as supplemented by an Act of 1865 and an Act of 1869, and explained by an Act of 1892. Section 22 of the Indian Councils Act, 1861 (24 & 25 Vict. c. 67), empowered the Indian Legislature, subject to the provisions of the Act, to make laws and regulations for repealing, amending, or altering any laws or regulations whatever now in force or hereafter to be in force in the Indian territories now under the dominion of Her Majesty, and to make laws and regulations for all persons, whether British or native, foreigners or others, and for all courts of justice whatever, and for all places and things whatever, within the said territories, and for all servants of the Government of India within the dominions of princes and States in alliance with Her Majesty.' Section 1 of the Government of India Act, 1865 (28 & 29 Vict. c. 17), after reciting that the Governor-General in Council had power to make laws and regulations for all persons, British or native, within the Indian dominions, and to provide for the trial and punishment of crimes and offences committed upon the high seas, enacting and declaring them to be offences of the same quality and triable and punishable as if they had been committed on land, as has been done as to offences committed at sea by British statutes. It would, of course, be proper to limit the application of such a law to persons, natives and subjects, owing obedience to the laws of the British territories. For piracy, &c., provision has been made by existing laws. 'Temple, January 30, 1839.' (Signed) J. CAMPBELL, R. M. ROLFE, R. SPANKIE, But it is difficult to reconcile this opinion with the opinion subsequently given as to the inability of the Indian Legislature to pass laws binding on natives of British India outside the territories of British India (see Forsyth, Cases and Opinions on Constitutional Law, pp. 17, 32). that it was 'expedient to enlarge the powers of the GovernorGeneral in Council by authorizing him to make laws and regulations for all British subjects within the dominions of' native princes, empowered the Indian Legislature to make laws and regulations for all British subjects of Her Majesty within the dominions of princes and States in India in alliance with Her Majesty, whether in the service of the Government of India or otherwise. Section I of the Indian Councils Act, 1869 (32 & 33 Vict. c. 98), empowered the Indian Legislature to make laws and regulations for all persons, being native Indian subjects of Her Majesty, without and beyond as well as within the Indian territories under the dominion of Her Majesty. Section 2 of the Indian Councils Act, 1892 (55 & 56 Vict. c. 14), explains that the expression now under the dominion of Her Majesty,' in the Act of 1861, is to be read as if the words or hereafter' were inserted after ' now.' It will be observed that the expression used in the Act of 1861 is, within the dominions of princes and States in alliance with Her Majesty,' an expression substituted for and apparently framed on the words in the Act of 1833, princes and States in alliance with the said Company.' The expression in the Act of 1865 is, 'princes and States in India in alliance with Her Majesty.' The language used in the Act of 1861, if construed literally, would seem wide enough to include the territories of any friendly State, whether in Europe or elsewhere. But some limitation must be placed upon it, and it may perhaps be construed as including States having treaty relations with the Crown through the Government of India, whether subject to the suzerainty of Her Majesty or not.1 However this may be, the power of the Indian Legislature to make laws binding on persons, other than natives of British India, outside British India and the Native 1 This seems to be the construction adopted by the late Mr. Justice Stephen, who says: The Government of India has power to legislate for public servants both in Native States included in British India, and in Native States adjacent to British India.' History of Criminal Law, ii. 12. |