Slike strani
PDF
ePub

II B. English and Colonial Legislation respecting the Jurisdiction of Courts of Justice compared on principles of Constitutional Law.

It is submitted that the English courts-apart for the moment from a consideration of Order XI-have no greater inherent powers, territorial, extra-territorial, or otherwise, than similar courts in the Colonies.

Let us compare the powers and jurisdiction of the High Court of Justice in England with that of the Supreme Court of Alberta, to take the youngest province of the Dominion of Canada as an example.

The Supreme Court of Judicature Act in England, sect. 16, provides :

'The High Court shall be a Superior Court of Record, and subject as in this Act mentioned there shall be transferred to and vested in the High Court the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any of the Courts following (that is to say),

(1) The High Court of Chancery, as a common law court as well as a court of equity, including the jurisdiction of the Master of the Rolls, as a judge or master of the Court of Chancery, and any jurisdiction exercised by him in relation to the Court of Chancery as a common law court;

[ocr errors]

(2) The Court of Queen's Bench;

(3) The Court of Common Pleas at Westminster;

(4) The Court of Exchequer, as a court of revenue, as well as

a common law court;

[ocr errors]
[ocr errors]

(5) The High Court of Admiralty;

(6) The Court of Probate;

(7) The Court for Divorce and Matrimonial Causes ;

(8) The London Court of Bankruptcy;

'(9) The Court of Common Pleas at Lancaster;

'(10) The Court of Pleas at Durham;

(11) The Courts created by Commissions of Assize, of Oyer and Terminer, and of Gaol Delivery, or any of such Commissions.'

6

The Supreme Court Act of the Province of Alberta provides :

The court shall within the province and for the administration of the laws for the time being in force within the province, in addition to any other jurisdiction, rights, powers, incidents, privileges and authorities which immediately prior to the coming into force of this Act were vested in or capable of being exercised within the province by the Supreme Court of the North-West Territories, possess the jurisdiction which on the fifteenth day of July, one thousand eight hundred and seventy, was vested in, or capable of being exercised in England by:

1. The High Court of Chancery, as a Common Law Court, as well as a Court of Equity, including the jurisdiction of the Master of the

Rolls, as a Judge or Master of the Court of Chancery, and any jurisdiction exercised by him in relation to the Court of Chancery as a Common Law Court;

6

[ocr errors]

2. The Court of Queen's Bench;

3. The Court of Common Pleas at Westminster;

4. The Court of Exchequer as a Court of Revenue, as well as a Common Law Court;

'5. The Court of Probate ;

6. The Court created by Commissioners of Assize and Oyer and Terminer and of Gaol Delivery, or any of such Commissions.

(2) The jurisdiction aforesaid shall include the jurisdiction which, at the commencement of this Act, was vested in or capable of being exercised by all or any one or more of the judges of the said courts, respectively, sitting in court or chambers, or elsewhere, when acting as judges or a judge in pursuance of any statute, law or custom; and all powers given to any such court, or to any judges or judge, by any statute; and also all ministerial powers, duties and authorities, incident to any and every part of the jurisdiction so conferred 1.'

[ocr errors]

The Alberta statute is of exactly the same efficacy and authority as the Act of the British Parliament. It is a mistake, as complete as it is common, to speak of the powers delegated' to a Colonial Legislature 2. That the Legislature of the Province of Alberta in any sense exercises delegated powers is a notion that the most elementary study of the Canadian constitution will effectually dispel. On the contrary, within its sphere of action, it has plenary powers of legislation, and can exercise them in as free and ample a manner as the British Parliament-the only limitations being those contained in the B.N.A. Act itself, and the implied limitation that it cannot legislate on matters of Imperial concern, or repugnantly to Imperial legislation within the meaning of the Colonial Laws Validity Act 3. Were it not for the constant recurrence of passages such as I have noted from Sir F. Piggott's work, it would have seemed quite unnecessary to state this elementary principle of constitutional law.

The powers then of the Alberta Supreme Court being practically identical with those of the High Court of Justice are limited territorially in exactly the same way. This is very clearly stated by Sir F. Piggott 4.

'The territorial area within which courts have jurisdiction is, in ordinary cases, coterminous with the territorial area over which

1 The Supreme Court Act of the Province of Alberta, 7 Edw. VII, cap. 3.

2 See Piggott on Service out of the Jurisdiction (1892), p. 201. Clement, Canadian Constitution, 58. Phillips v. Eyre, L. R. 6 Q. B. 20; Q. v. Burah, 3 App. Cas. 889; Russell v. Reg. 7 App. Cas. 829; Hodge v. Reg. 9 App. Cas. 117; Maritime Bank of Canada v. Rec.-Gen. of New Brunswick [1892] A. C. 437.

Service out of the Jurisdiction (1892), p. 4.

the sovereign rules. But in the case of a composite kingdom, such as that ruled over by the Queen of England, it is necessary to introduce a limitation to the general principle. The territorial area of the different courts of the Queen is limited to that part of the dominions within which they are established; for the courts of England, Scotland 1, Ireland, these areas are England, Scotland, and Ireland respectively. For the courts of India and the Colonies, the areas are the Presidencies and the Colonies respectively.'

So it is evident that we have to look further than to the general powers of the High Court in England to find any superior efficacy in its writs or processes over those of Colonial courts.

II c. English and Colonial Legislation respecting Service out of the Jurisdiction compared.

This brings us to Order XI of the Rules of Court. Now in what respect is the English statute of greater efficacy than similar Colonial statutes? The principal object of the Parliament of Great Britain and Ireland, and of the Colonial Legislatures, is the same, and it may shortly be stated to be to repeal the maxim-The King's writ does not run beyond the sea.'

The English and the Colonial Rules of Court alike affect three classes of persons :---

(1) Foreigners.

(2) British subjects resident in foreign parts.

(3) British subjects resident in other portions of the King's dominions than that within the territorial area of the respective courts.

As against foreigners, the service ex juris is alike ineffective: except from the standpoint of municipal law the courts thereby obtain no effective' jurisdiction in an action in personam 2. As against British subjects resident in foreign parts, the efficacy of the service is perhaps doubtful in either case. The case comes within the fourth proposition laid down in Russell v. Cambefort 3. In any event the efficacy of the writ is dependent on the principle of allegiance, which will be dealt with presently. As against British subjects resident in other portions of the King's dominions, &c., English jurisprudence holds that the service of the King's writ

1 Cf. McIver v. Burns [1895] 2 Ch. 630.

2 Dicey, 2nd ed, Rule 83 and notes.

3 (23 Q. B. D. 526), but see Piggott, Service out of the Jurisdiction (1892), p. lxii; pp. 57-8.

The question of whether the writ, or only notice of it, should be served on foreigners, seems practically a mere matter of diplomacy, etiquette, or polite manners, though the principle of the thing may have some bearing on the main question.

[ocr errors]

issued by the English court is effective,' while the service of the King's writ issued by the Colonial court is 'ineffective.'

It must be remembered that process of the Colonial court runs in the King's name just the same as process of the English court-the writ in each case is equally the mandate of the sovereign, and if jurisdiction is to depend on allegiance it is difficult to see why a British subject, in British territory, is not bound to obey the King's writ whether issued by a court in England or a court in the Colonies.

The answer that is made to this position is, of course, this: It is only by virtue of statute that the King's writ runs beyond the sea. The Parliament of Great Britain and Ireland can legislate imperially for all the King's dominions; whereas the Colonial Parliaments can only legislate for their respective colonies. Thus, speaking of the powers of the Provinces of Manitoba and Ontario, Armour C. J. O. says1: 'And to neither is any power given to pass laws having any operation outside its own territory.' An exactly similar limitation, however, applies to the Imperial Parliament: it is only when it is legislating imperially' that its statutes have any operation beyond the limits of England, or at any rate of Great Britain. The question does not appear to be governed by the Colonial Laws Validity Act by which it is enacted that any colonial law which is or shall be repugnant... to the provisions of any Act of Parliament extending to the colony... shall to the extent of such repugnancy ... be void... and inoperative.' The question is rather whether the Colonial statute trenches upon the Imperial domain of legislation.

'Colonial Acts in one respect differ from Imperial, that they can have no extra-territorial effect even as to British subjects unless express power of extra-territorial legislation is conceded to the colony by an Imperial Act or Charter *.'

[ocr errors]

On the other hand, the British Parliament possesses the power to impose restrictions and disabilities and incapacities upon any British subject which shall operate upon him anywhere 5.' But whether any particular Act of Parliament purports to bind British subjects abroad will always depend upon the intention of the Legislature, which must be gathered from the Act in question".

The question then narrows itself to an inquiry whether (a) the English Statute purports to bind British subjects abroad, and

[blocks in formation]

2 This is so decided in Ashbury v. Ellis [1893] A. C. 341: 'It is not contended that the rules in question are repugnant to the laws of England. In fact they are framed on principles adopted in England.'

28 & 29 Vict. cap. 63, s. 1.

Hardcastle on Statute Law, 456.

Sussex Peerage case (1844) 11 Cl. & F. 86.

Hardcastle, 423.

() whether the Colonial Acts trench upon the Imperial domain of legislation.

In re Busfield1 Cotton L. J. says:

'Generally courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction. If an Act of Parliament gives them jurisdiction over British subjects wherever they may be, such jurisdiction is valid, but apart from statute, a court has no power to exercise jurisdiction over any one beyond its limits.'

2

The italics are the writer's. But does the Act of Parliament (i. e. Order XI) give or profess to give 'jurisdiction over British subjects wherever they may be '? If so, then the Act equally gives jurisdiction over foreigners, for except in the matter of serving notice of the writ instead of the writ itself, there is no distinction. in Order XI between foreigners and British subjects, and we are at once face to face with the difficulty, referred to in Piggott and discussed to some extent by Cotton L. J. in ex parte Blain3. The Judicial Committees in Lopez v. Barden state that 'the British Parliament certainly has no general power to legislate for foreigners out of the dominions and beyond the jurisdiction of the British Crown.' Even viewed in the light of municipal law, the remarks of Brett L.J. in ex parte Blain3 are worthy of careful note:

4

'Foreigners not domiciled here and not present in this country could not be made subject to the English bankruptcy law unless they had committed an act of bankruptcy in England.

And in the same case James L.J. says:

The whole question is governed by the broad, general, universal principle that English legislation, unless the contrary is expressly enacted, or so plainly implied as to make it the duty of an English court to give effect to an English statute, is applicable only to English subjects or to foreigners who, by coming into this country, whether for a long time or a short time, have made themselves during that time subject to English jurisdiction.'

III. Is English Order XI to be regarded as Local or Imperial

Legislation?

Bearing these principles in mind, let us proceed to examine the legislative qualities of Order XI.

In the first place: On its face Order XI does not profess to be imperial legislation. If the Judicature Act had enacted that all of Her Majesty's courts wherever situated should have power to allow service out of the jurisdiction, &c., or that British subjects wherever 3 12 Ch. D. 522.

1

1 (1886) 32 Ch. D. 131.

2 p. lx.

• Ante.

« PrejšnjaNaprej »