1912-12-10 — Page 3

Page

21

THE SHAMEEN MURDER

CASE.

ORTANT DECISIONS AS TO

JURISDICTION.

mur-

in the case in which a Sepoy, Ibrahim, in the 126th

convicted of the Regiment, was der of Ali Shafa, a Subadar in the same Regiment, which was stationed at Skamera, Canton, at the time of the

GETETUGASU.

(Section 2),

in

which

Lord

THE HONGKONG DAILY PRESS TUESDAY, DECEMBER 10mm, 1912. The procedure for onrol-Ideal with it as they find it, and indeed the Government which provided that no Swis went to the Suprind Cou

Court, ment is laid down under sections 8 to 13 doctrine has acquired a certain definite should be delivered up by Switzerland to reversed the decision and made the order news and precision owing to the way in the Government of the United Kingdom prayed for. There was then an appeal to inclusive, and the persons enrolled are which it was treated by Dr. Lushington and no subject of the United Kingdom th Privy Council and the reference to the subject to that Act at all time, and in the case of the "Laconia," 2 Mo. F.C. should be delivered up by the Government treaties was, it appears, made for the first wherever they may be serving.

Now (a.a.) 181. That case was referred to by thereof to Switzerland; and an Order-in-time by the appellants Counsel and the Section 8 reads as follow:-"Upon the the learned Attorney-General in arga-Council was made which directed that the whole question of the jurisdiction of the Consular Court was enquired into and ment and the following words in the Act should apply in the case of the treaty.

Here, as in At the Supreme Court yesterday judg-appearance before the prescribed enroll judgment were relied on,It is true that At the hearing before the Magistrate it the treaties interpreted.

the. Orders-in-Council were in excess of ment, was given by the Full Courting officer of any person desirous of being if you enquire as to the existence of any was not disputed that the offence with Wilson's case, the one of establishing that interesting legal questions raised enrolled the enrolling officer shall read and particular privileges conceded to one which the prisoner was charged was the treaty powers fell upon the parties State in the dominions of another, you within the provisions of the treaty, but it impugning them, and, as I have said, in named explain to him or cause to be read and would, amongst European nations, look to was proved that he was a British subject the Japanese Government . P. & O. case explained to him in his presence the con- the subsisting Treaties; but this mode of The Magistrate was of opinion that that their construction was only challenged by Baluchistan ditions of the service for which he is tonourring obligations, or of investigating fact was immaterial as he was not entitled the appellants in the Privy Council. One

he..enrolled." The words are perfectly

the judgment of general and there is nothing to show what has been conceded, is matter efto consider the terms of the treaty but

passage either in the Act or in the enrolment Custom and not of natural justice. Any only the Extradition Act of 1870, which Herschall, Lord Chancellor. I desire to papers before the Court that an alien can- mode of proof by which it in shown that contained to such limitation as in the refer to, as it implies that if the Order- a privilege is conceded is, according to treaty- His Counsel argued that the in-Council prescribes some thing incon be enrolled, and as a fact the prisoner: the principles of natural justice, sufficent Extradition Act must be read in connec-sistent with the treaty it is binding on an alion, and a native of an independent State, was enrolled under the sections for the purpose.. The formality of a tion with the Order-in-Council and the the Court and the party aggrieved should The Attorney-Cieneral, Hon. Mr. J. A. S. alluded to. Now being satished that the Treaty is the best proof of the consent and Treaty embodied in it, and the Court seek redress through diplomatic channels, Cockburn, I.C.J.. He says. Their Lordships do not find it Buckwill, K.C., (instructed by the Crown Indian Military, law and duis corolled only proof, nor does it exclude other said, "I cannot entertain a shadow of necessary to express any opinion upon

prisoner, although an alien, is subject to acquiescence of parties, but it is not the decided accordingly. Solicitor, Mr. J. H. Kemp) represented under it and that he was at the time of proof; and more especially in trans- doubt that in accordance with the special the arguments addressed to them in rela- the Crown. Mr. F. C. Jenkin (instructed the murder in active service in one of the actions with Oriental States. Consent provision in the Extradition Act of 1870, tion to the construction of the Order-in- by Mr. R. A. Harding, solicitor), appear-King's Indian regimente in China, I may be expressed in various ways; by by which Her Majesty may make the Courel. It is clear that these could not think no distinction can possibly be constant uongo permitted and acquiegoed treaty and the application of the Aet operate to confer a jurisdiction upon the ed on behalf of the prisoner.

drawn between him and any born orin by the Authorities of the State, active, subject to any terms and conditions that British Courts in Japan wider than was The Chiof Justice (Mr. Roca Davies, His Majesty's Indian forces and that he must be full knowledge." This case. is cit must be co-extensive with, and limited in-Council in terms prescribed something naturalised British subject serving in assent, or silent acquiescence where there she may think proper, the Order-in-Coun-acquired by treaty. If indeed an Order K.C.) in his judgment said:This comes within the words of the definition Fally dealt with by Sir Francis Piggott, by, the Treaty, for otherwise our muni- which was inconsistent with the treaty it case arises out of certain points of" or otherwise enjoys His Majesty's pro who gives the judgment in its entirety, cipal legislature might be at variance ay be that the consular Judge would be bound to conform himself accordingly, tection in. China," may add that as a and in reference to the part I have cited with the terms which the two countries and that the party aggrieved would have law which were reserved by me for the fact His Britannic Majesty's Vice-Consul he says, "The part of the judgment which arranged between themselves, a propoal- consideration of the Full Court in the at Canton, who is the Additional Judge concerns as at the present moment is the tion absurd upon the very face of it to seek redress through the diplomatic. case of Rex 1. Ibrahim, who was recently under the Order-in-Council 1904, was

very explicit, statement of the moaning must therefore take it that the Order intervention of his Government. But The called and testified to the fact that all of jurisdiction acquired by sufferance, Council has embodied the terms of the such difficulty arises in the present case." convicted by a jury of murder. murder 'took place on the British Conces-protection in Shemeen and that such the Sovereign or Government of the coun-

the Indian soldiers enjoy His Majesty's First, there must be full knowledge in treaty, and that the Act of Parliament Our attention was also called to Jenkyns British Rule beyond the Seas," page is only applicable so far as it can b sion at Shameen, Canton, and the protection was afforded under the Order- try, and then there may be either active applied consistently with the terrns and 15, which states that the validity of an conditions therein contained." Now in Order-in-Council can be challenged on in-Council and the Foreign Jurisdiction prisoner, who is alleged to be a British

assent or silent acquiescence.'. It is Act 1800. subject within the meaning of the China

As to the second point taken by the difficult, however, to state with precision that case the terms of the treaty were the ground that it is ultra vires, as, for expressly recited and embodied in the instance, that it dealt with jurisdiction and Corea Order-in-Council 1904 was learned Counsel for the prisoner, what the legitimate inference from the Order-in-Council, and the remarks of which the Crown did not possess, or pur

decision is as to the amount of publicity Cockburn, L.C... jurisdiction. The Order-in-Council was

that the Orde-in-ported to confer powers in oxcess of the seat for trial to Hongkong by the British proved by the Crown, as also the in th: exercise of the jurisdiction claimed, Council must be co-extensive with and jurisdiction possessed by the Crown. Consular Court at Shameen, who took the warrant required by Section 50 and evi- from which the Court will infer the limited by the treaty applied obviously This dicta is wholly consistent with the preliminary examination. The commit-dence was given to show that it was ex- essential knowledge of that exercise in to the fact that the treaty was embodied authorities to which I have referred, and ment to Hongkong was effected under pedient that the offence be inquired into the Government of the Oriental State." in the Order-in-Council, I have dealt ho in fact refers to the Imperial Japanese Government case v. P & O. in support of Section 30 of the Order-in-Council which and determined in a British Possession The learned author again points out that with that case in extense to show that it

the statement (p154); (Section 50). But it is further contended the Foreign Jurisdiction Act cannot be is distinguishable from the present case.

* The extent of the I have named, and by virtue of the on behalf of the prisoner that proof of appealed to, to warrant any larger where the treaty although referred to in jurisdiction depends, therefore, on the Foreign Jurisdiction Act 1890, Section & the treaty referred to in the preamble to exercise of the treaty, grant, and this the recital is not embodied either in the treaty or usage, and not upon the Act."

.00 in the Foreign In the view which, for the The necessary warrant under the hand the Order-in-Council is necessary and presumably would apply equally to the Order-in-Council

that the Court should have knowledge of of the Judge and the seat of His Bri-it, so as to be satisfied that the Order-inrder-in-Council. Being of opinion, for Jurisdiction Act of 1890. And according stated, I take of the law that the onus of reasons which I shall subsequently deal to my view the onus is placed on the de-establishing that the Order-in-Council is tannic Majesty's Court in China was pro-the power given by the treaty be-show in the face of the preamble that the

Council is intru vires and does not exceed with, that the onus is upon the defence to fence of showing that they contain powers within the powers granted by the treaty

in excess of the treaty.

is not on the Crown, the second contention duced and proved at the trial.

tween the King and the Emperor of Order-in-Council goes beyond the extent

The Imperial Japanese Government ». of the defendant's Counsel as to jurisdic Three points were raised on behalf of China, I would here remark that the of the Treaty, we are not in my view

Peninsular & Oriental Steam Navigation tion must fail; and the third contention the prisoner. (1) That he is not a Bri-recital in the preamble is not limited to called upon to investigate, the limitation Co. 1895 A.C. 644. This was a case of as to the failure to prove that the treaty

treaty but alleges His Majesty's jurisdic- tish subject within the meaning of thetion by "Treaty, grant, usage, sufferanch of the treaty grant. I will now proceed collision at sea between a Japanese ship-is existent under the new system of

of war and a P. & O. steamer.

government in Chinh fails also for the to deal shortly with the cases which wer leading case in exterritoriality. It was

same reason. We have as a fact before cited by the learned Counsel for the brought in the Consular Court at Yoko us the evidence of the Vice-Consul at dofence.

B.-.--Wilson, 3. Q.B.D. 42-That was a

The petition alleged that the P. Canton, who stated that the jurisdiction case of habeas corpus andor extrudition

& O ship was alone to blame. The Phe-acted under in this case was conferred proceedings The Extradition Act, 1870,

& O. Co. in their answer alleged contra by this Order - in - Council and the s. 2, provided that where an arrangement claim against the Japanese Government have to add that if proof of the treaty

Jurisdiction Act, 1990. and moved for leave to file a counter Foreign has been made with any foreign State claiming damages, and the Court in the is necessary in these proceedings it would with respect to the surrender of any fugi-first instance refused leave on the ground appear to be so in every case, however tive criminal, Her Majesty may by Order that the place where the collision occur trivial, which is triable under the China in Council direct that the Act shall apply red was in the Empire of Japan and ac-and Coren Order-in-Council, a course in case of such foreign State. It further cordingly the law of Japan was to be pregnant with difficulty and required that every such Order stall applied to the collision, and that as by venience. In my opinion the conviction recite or embody the terms of the arrange that law the Emperor is not liable for must be confirmed. ment entered into with such foreign State. the negligence of his servants he could A treaty was subsequently entered into not be sued in a British Court for dam between Great Britain and the Swise ages resulting therefrom. The case then

and the

nu and Cores Order-in-Council 1904. and other lawful means,' That the Crown had not proved the preamble of the Foreign Jurisdiction Act, risdiction of this Court to try the 1890, upon which Section 50 of this Order- in-Council is based, contains similar risoner. (3) That the Crown has not words as follows: Whereas by treaty erored that the treaty between is capitulation, grant, usage, sufforance and Majesty the King and the Emperor of other lawful means Her Majesty the China is existent under the system of Queen has jurisdiction within divers Government now prevailing in China. foreign countries"

The first three of these are classed by Sir Francis Piggott I will now deal with the first conten-in his masterly treatise on exterritoriality tion. British subject" referred to in under the general head of treaty, the last Section 50 of the Order-in-Council is three he says may conveniently be group defined by Section 3 as follows: Bried under the head of sufferance. Then tish subject includes a British protected the preamble must be read in conjunction with the Act as a whole and Section 1 person, that is to say, a person who

"confirms the jurisdiction of the Queen either (a) is a native of any protectorate to hold, exercise and enjoy any jurisdic- of His Majesty and is for the time being tion which Her Majesty now has or may in China or Corea; or (b) by virtue of at any time hereafter have with any Section 15 of the Foreign Jurisdiction foreign country in the same and as staple a manner as if Her Majesty has acquired *Act 1890, or otherwise enjoye His that jurisdiction by the cession or con- Majestys protection in China or Corea. quest of territory," Now the jurisdiction Now the prisoner is admittedly a native of Afghanistan, an independent State, but the Crown contends that he comes within the concluding words of the de- finition "'or otherwise enjoys His Majesty's protection in China or Cores, The prisoner is a sepoy in the 126th Balachis; his enrolment papers which were produced in evidence show that he was enrolled on the 12th June, 1911, and that he accepted the conditions of service laid down in the enrolment paper, that he duly took the oath of allegiance to the King, his seal boing duly attested by an European Captain commanding the

which Her Majesty has or may at any time hereafter have" is that acquired by treaty, capitulation, grant, usage, suffer- auto and uther lawful means, that is to say, the treaty, is only one of a number of modes of acquiring jurisdiction, andį

Section 12 (1) which points out in what

hama.

Our Teeth.

It is a

It has long been scientifically demonstrated that the teeth are destroyed A whole literature exists proving by chemical and bacterial influences. beyond the possibility of doubt that it is impossible to preserve the teeth without keeping the mouth antiseptically clean and in a healthy condition; that is to say, free from microbes and fermentation processes.

cases Orders-in-Council are void for re- pugnancy, there is in fact no reference to a treaty. As to this Sir Francis

But in spite of all this the majority of us confine the care of our teeth Piggott, however, remarks that "the ques

to brushing them with tooth-powders or tooth-pastes, as if the whole art to whether an Order-in-Council is re- pugnant to the provisions of the Foreign. Jurisdiction Act under which it is runge of keeping the teeth in good condition merely depended on superficially is obviously one which is independent of cleansing them from impurities, just as dust is removed from china. The this section. So also is the question of teeth are discoloured, injured, and ultimately brought into peril by something repugnancy to the Treaty that point far more serious than dust that can be brushed off-by microbes and processes being covered by the fundamental prin- ciple that the King has no jurisdiction of fermentation. And it is necessary to combat these processes in the only Depot of the 126th Baluchis. Irrespec- other than that acquired by the Treaty tive of the enrolment papers, another or by sufferance. Furthermore, while the way in which they can be combated, that is, by antiseptics, which must be

mere recital in an Act, whether of fact liquid antiseptics that will wash the whole mouth, sepoy in the same regiment deposed to

or law, is not conclusive, yet when it is being present and taking the oath of clear that the legislature intended that

A single moment's reflection should con- allegianco a the same time as the the law should be, or the fact should be vince everybody that only the external prisoner. Now as to the question of whe-regarded to be as recited, the Court surface of the teeth can be reached

relies on the fact accordingly. 34 Geo. with preparations like tooth-powders ther he enjoys His Majesty's protection III., c. 54 reciting that a conspiracy in China it is necessary to refer to the had been formed for subverting the ortooth-pastes, for our teeth arenot Army Act of 1881 (of the Imperial Parlia-laws and constitution, and for intro

so obliging as to decay only in the anarchy provaleat in ment). By Section 190 (8) the expressionducing "regular forces" includes, subject to the France; this recital was relied on as places where we can conveniently modifications contained in the Act,. His proof of the conspiracy in the treason reach them with the brush. On

trials of 1784 (Eyre, C. J., in Hardy's Majesty's Indian forces. Section 190 (29) case 24, State Trials, 200) (Maxwell p. 469), the contrary, the mischief mostly defines native of India" as a person Now this is an ancient authority, but in begins precisely in those localities triable and punishable under Indian the absence of proof to the contrary, I Military law as defined by that Act: think it can be assumed that the Court which are difficult of access, such as and Indian Military Law" is defined can rely on the existence of treaty as the backs of the molars, in the cracks

stated in the recital which gave jurisdic and crevices in and between the teeth, by section 180 (8) (6) to mean the articles tion both to the Foreign Jurisdiction Act,

and other cavities. Thus it is self- of war or other matters made enacted or 1890, and to the China and Corea Order in force or which may hereafter be made in-Council, 1904. In reference to the last

evident that in order to protect the teeth from injury, and to keep them sound, it is absolutely indispensable to use an antiseptic fluid which will reach all parts of the mouth and

of Protectorates, at least in their early

reason

I

incon-

The Puisne Judge, in the course of a very lengthy written judgmont, said that some of the objections taken to the Order- in-Council went to the root of British extraterritorial control in China, for they would apply equally to the competency of any Consular Court to try the most trivial offence that might be brought before it, while others related parti- cularly to the special circumstances of the trial of the prisoner before the Court. He thought the argument might be stated as follows-The existence of a treaty

嗡

INTIMATIONS.

TERRIBLE RASH

ALL OVER LIMBS

Scratched Until Blood Flowed fif

Sores. Worse in Bed. Used Cuticura Soap and Ointment, Improvement from the First. Now Completely Cured.

"A terribio rush broke out all over me arms and ings. The apois came out about the site of the points of pins and I suffered

very much particularly after I went to bed.. I was zo luctantly forced to scratch my arms and legs until the blood flowed from the surES, I took all sorts of medielno but without avail and I also consulted a doctor. He sent me two boxes of ointment and told me to rub the sint. ment well lato ihe parts affected before going to bed. I did as directed but instead of getting relief I only got worse.

The rash was always increasing but it only affected my arms and legs. I used to feel worse after getting warma in bed, so

E that I dreaded going to bed at a much shall I forget the pain I endured all along. I would scratch the very Desh off as well as The skla. I wrote to a friend about it and bo cent me a box of amtment, but it did no good. I read about the Cuticura Remedies in the paper and I decided to give them a trial at any cost. I got two cakes of Cuticurs Soap and one box of Cuticura Ointment and began using them us directed. From iho first there was an improvement and in about fluco month time I was completely cured and am now able to sleep quite soundly, (Bigned) J. E. Blanton, Carcacon. Hailyglass, Co. Moyo, Ireland, April 26, 1911.

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or treaties with China is, recognised by ENGLISH, AMERICAN the preamble to the Order-in-Council, but still a treaty in, existence between the the Court must be satisfied that there was King and the Government of China con- GOLD ferring jurisdiction. There had recently been a revolution in China, accompanied by a change, of Government, and the Court had to enquire whether treaties ENGLISH MOUNTED CHINESE JADE Fof- China were still recognised by the made between the King and the Emperor respective Governments as binding. The Treaty must be proved, and its provisiona must be examined to see whether the jurisdiction, assumed by the Order-in-

JEWELLERY:

SILVERWARE,

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PRINCES PLATE.

Council was not too wide. His Lordship; MAPPIN & WEBB'S no proof of the continued existence of dealing with the objection that there was the Treaty, said that they knew nothing judicially of any change of Government in China. It was not suggested that either the British or Chinese Governments had denounced their mutual treaties or given notice of any termination of the obligations thereunder. It seemed to his Lordship, therefore, that they were bound to assume in the absence of any kind of evidence to the contrary that the King was still asserting his Treaty rights, whatever those rights might be. His Lordship also held that the prisoner came within British jurisdiction, being a soldier of the Indian Army, and in his opinion stated that the jurisdiction of the Court over the prisoner was fully established.

Mr. Jerkin-I apply to your Lordships OUR for a special appeal on this point. I

appeal in forma paupería.

The Chief Justice-If you are going to STUDY make this application I think we shail have to hear you on it now..

Mr. Jenkin-I have a Further applica tion, which is for the issue of a writ of habeas corpus.

three modes of acquiring jurisdiction enacted or in force under the authority of contained in the recitals which Sir the Government of India; and such Francis Piggott has grouped under the articles or other matters shall extend to head of "sufferance," I will deal with such native officers, soldiers or followers them very briefly. Piggott on Ex-

teeth, penetrate the hollows, pass between the crevices, enter the fissures,

The Chief Justice On what grounds! wherever they are serving. The posi-territoriality, p. 39, says, "So far

Mr. Jenkin-Upon the grounds which as I am aware there is tion, therefore, is that those persons in in

no country antiseptically cleanse the backs of the molars, and, in short, be effective which the

I have filed in this Court Your Lord- exèrcise of foreign

everywhere. His Majesty's Indian forces for whom the jurisdiction has ever depended entirely

ships are chiofly against me on the ground Indian Legislature acting within the ex on suffonance, but it eers probable This result can be secured with absolute certainty, as has been repeatedly that the onus is on the defence to prove tent of its legislative powers has provided that it enters largely into the creation demonstrated by eminent men of science, by the famous liquid dentifrice, Odol that the Order-in-Council is ultra vires,

The Chief JusticeAs far as habeas a Military code, are subject to that code history. Yet sufferance holds an import- Odol is the first and only preparation for cleansing the mouth and teeth corpus is concerned, can you show any and are tried and punished in accordant place in the general scheme of foreign which exercises its antiseptic and refreshing powers not only during the few precedent, where a prisoner has been con- ance with it instead of in accordance with jurisdiction. The most cursory glance at

moments of application, but continuously for hours afterwards.victed and where; on points of law that have been reserved; the conviction has the Imperial Army Act. Now the Indian the treaties will show how slight indeed, Military law at present in force which how incomplete, a foundation the articles

Odol penetrates the interstices of the teeth and the mucous membrane of been confirmed! of those treaties are for the very extensive has been enacted since the passing of the structure of jurisdiction which has been

the mouth, to a certain extent impregnating them, thus securing a safe- Army Act 1881, under the authority of raised upon them." And in reference to guard and preservative for the teeth such as no other dentifrice can promy Lord. the Government of India, is the Indian the Order-in-Council he points out the vide, not even approximately. Army Act 1911; a copy of this Act con-want of correlation which is apparent

Owing to this characteristic, peculiar only to Odol, the whole oral cavity tained a Manual of Indian Military between the rights actually granted and

to the minutest recesses, is completely freed from and protected against referred to by the learned the rights actually uxercised." And he goes on to say, "The explanation is that to be much of the jurisdiction claimed is in all fermenting processes and injurious bacteria. General; it purports printed by a Government printer and is excess of the treaty grant and therefore It follows that every one who daily and regularly cleanses the mouth and asfeuch, I think, admissible in evidence must depend for its validity ou suffer- under Ordinance No. 3 of 1908. The per-auce." Whether it is right that it should teeth with Odol will practise the most perfect hygiene of the mouth and sons subject to that Act are amongst bao, or whether it is wrong, how teeth in accordance with recent scientific principles.

shadowy soever the doctrine may be the of all Chemists and Stores, thers persons enrolled under that Act, fact remains and the Courts are bound to

law

Attor

1399-1

Mr. Jenkin-I am not asking for habeas corpus on a point which has been reserved, The Chief Justice-Do you say that the terms of the Treaty are inconsistent with the Order-in-Council

Mr. Jenkin-The Order-in-Council is ultra vires.

The Attorney-General observed that he had not seen any application papers

at present.

The Chief Justice-In any event, we are obliged to hear it.

His Lordship fixed Monday next for the hearing....

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