CO129-361 - Public Offices - 1909 — Page 265

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a British or German subject holding a lease on the other Power's Concession should be required to enter into an undertaking that he held the lease subject to the condition that all questions in regard thereto should be determined according to the law of the Power holding the Concession would be of advantage to British subjects as settling the law, and might meet the German difficulty in regard to registration and priority of mortgages. To take a concrete example, suppose that a British mortgagee had advanced money to a German mortgagor on the security of a Canton British Concession lot registered at the British Consulate in the name of the German subject, and that the mortgage had been registered at the British Consulate in accordance with section 2 of the Shameen Land Regulations, 1908 (King's Regulations No. 2 of 1908), and Article 129-133 of the Order in Council 1904, and suppose that the German became bankrupt, the estate would be administered under the jurisdiction of the German Court at Canton which would give the British mortgagee his rights according to English law in respect of his registered mortgage. If the British mortgagee thought he was not getting his rights he might apply to the British Court for an injunction restraining the Registrar from transferring the lot until the matter had been duly determined. This case put vice versé in regard to a British subject holding a lot on the German Concession at Hankow would seem to give all the certainty to the law of mortgages the Germans can require.

The alternative would be that the Court of the Power holding the Concession should be the forum rei site with sole jurisdiction to decide all questions in regard to concession lots. This looks neater on paper, but I am not prepared to say off-hand that it would work well in practice. An obvious objection is that the Court would have no power to act in personam against a foreigner, eg, in giving possession or the enjoyment of an casement. It would necessitate an amendinent of Article 5 of the Order in Council 1904, and perhaps to cover all the ground an agreement among the Treaty Powers holding concessions.

2. Jurisdiction over Foreigners to enforce Municipal Regulations.

There seem to be grave objections to the German proposals under this head. China has given up her territorial jurisdiction over British subjects to Great Britain, has Great Britain therefore the right to transfer any part of this jurisdiction to Germany? Again the King in Council can, in virtue of the Foreign Jurisdiction Act, bind British subjects in China by legislation, and his Courts can apply German or any other law, and can in civil actions inforce an undertaking by a British subject to be bound by German law, but has the King the right as against his own subjects to put them under the jurisdiction of a German Court? The Foreign Jurisdiction Act provides that the jurisdiction held by the Crown shall be enjoyed in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory," that is to say, by sole virtue of the prerogative as if China were a Crown Colony, so that the King has absolute power of legislation for his subjects in China by Order in Council. But because the King can make laws and establish his own Courts to administer them, it by no means follows that be can hand over British subjects in China to the jurisdiction of a Court of a foreign Sovereign. But whether illegal or not, I think such a course would be highly inexpedient. It would tend to confuse a long established system-the personal law administered by the defendant's Court--which works better than a Western lawyer could imagine possible. If a German Court is to fine a British subject in China, is it to imprison in default of payment? (See Article 13 of Order in Council 1907) The grant of any such power to a German Court would be deeply resented by British subjects. Suppose a breach of Municipal Regulations combined with an assault ou a German police constable-a very likely case-is the breach to be tried by the German Court and the assault by the British? I believe that in practice such an arrangement would breed confusion and contempt for the administration of justice; it would upset a practice with which I thought every foreigner in China was satisfied until I read this paper. There is, however, a flaw in the present system, namely, that there is no power to inforce Municipal Regulations on any other subject of a foreign Power except the lot-holder who has entered into an undertaking to be bound by the Concession Regulations. To give an example, how is bye-law 27 of the Canton Land Regulations in regard to riding and driving (King's Regulation No. 2 of 1905) to be enforced against a German who, not being a lot-holder, has not given the above undertaking, say a German bluejacket? The bye-law is not German law and the

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German Court would have no power to enforce it. The remedy would seem to be Regulations, agreed to by all the Treaty Powers, applying to all Concessions and issued, so far as we are concerned, under Article 156 of the Order in Council 1904. There would, 1 believe, be no difficulty in drawing one set of Regulations to apply to all Concessions in China.

(1)

"Jurisdiction over land" would be then provided for by the undertaking, and (2)

"Jurisdiction over foreigners" by such Regulations, without upsetting the present practice in regard to the jurisdiction. Perhaps these two measures might meet the German requirements. I agree that in both cases there is a serious difficulty to be met, but I recommend the above course of action as likely to work better in practice than that proposed by Dr. Kriege.

Supreme Court, Shanghae,

February 24, 1909.

(Signed)

Inclosure 2 in No. 1.

Acting Consul-General Ker to Sir J. Jordan.

F. S. A. BOURNE.

(No. 12.)

Tien-tsin, February 4, 1909. Sir,

I HAVE the honour to acknowledge the receipt of your despatch No. 6 of the 30th ultimo, inclosing copies of correspondence relative to a proposal put forward by the German Delegate to the International Naval Conference in London for the modification of jurisdiction in the British and German Concessions in China, and calling for an expression of my views on the points raised by Dr. Kriege.

Dr. Kricge's suggestion is that the German Consular Authorities should have, within the limits of the German Concession jurisdiction over British subjects "in all matters relating to land and to the enforcement of municipal regulations," and that the British Consular authorities should have a hike jurisdiction over German subjects.

No case is made out for grauting such jurisdiction for the purpose of enforcing municipal regulations, and it suffices to apply to this part of the proposal Mr. Hurst's opinion that it "would thrust upon us a considerable jurisdiction that there would be no advantage in possessing."

With regard to "land matters" Dr. Kriege advances the arguments: (1) that money cannot be safely lent on mortgage unless both parties know their legal position, and (2) that the judgment of a foreign Consular Court cannot be enforced without application to the Consular Court of the Concession Power,

To meet these arguments it is only necessary to examine the law and practice prevailing in the British Concession at Tien-tsin. If a German owns a lot in the British Concession, and mortgages it to a Frenchman, the instrument of mortgage is The German registered in the British Consulate-General and nowhere else. authorities in Tien-tsin have expressly recognized that such registration is all that is necessary to give validity to the document; for it is obviously essential that the register of mortgages should exist alongside of and be complementary to the laud- register.

During the forty-eight years that the British Concession has existed in Tien-tsin, no legal proceedings have ever been taken to enforce a mortgage; but, in the case which I have quoted, if the French mortgagee required the help of the law to enforce his rights, he would naturally bring an action against the German mortgager in the German Court, which, on due proof of the registration of the mortgage, would determine the rights of the parties by an application of the elementary principles of private international law. No further application in the British Consular Court for the British Consul-General, acting in his executive capacity, would give effect to the Decrec of the German Court.

would be necessary,

I venture to submit that the mere statement of the system now in force is sufficient to refute Dr. Kriege's arguments in favour of altering it. The system is in fact juridically more sound and logical than that suggested by Dr. Kriege, for even if the change were made, a British Court could only exercise a partial jurisdiction over a Gernian defendant, the exact limits of which it would be impossible to define. for instance, that it is not contemplated that a British judge should have power to commit a German mortgagor to prison for contempt of Court. This is only one of many difficult questions which might arise and which might prove a fertile source of friction and inconvenience.

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