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GERMANY.

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£ 1,250

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each
each 600

700

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President of the Reichsgericht (with allowance for rent) Presidents of Chambers (with allowance for rent) Counsellors (with allowance for rent) The remuneration of the presidents of the Oberlandesgerichte vary from £427 to £800; presidents of chambers from £306 to £700; counsellors, £200 to £600. In the Landgerichte the salaries of the presidents range from about £200 to £500 or £600.1

The judicial remuneration in Italy is even smaller, as appears above.

A characteristic of the remuneration of the judges in Sweden, as explained in Dr. Carlson's interesting memorandum, is that they are paid partly in fees by the parties. Another peculiarity is that the judges in country districts are better paid than those in towns.

It is unnecessary for me to draw attention to the contrast between the above salaries and the judicial salaries in England (e.g., the Lord Chief Justice, £8,000; the Master of the Rolls, £6,000; the judges of the Supreme Court, £5,000). Nor need I add that the above figures, important though they are, are by no means conclusive as to the comparative cost of the administration of justice.

1 I take these figures from M. Dubarle's Code ďOrganisation Judiciaire Allemand. The subsequent changes are, I understand, slight.

EXTRA-TERRITORIAL JURISDICTION IN

HONG-KONG.

[Contributed by A. M. LATTER, Esq.]

To judge correctly of the success of the extra-territorial system it is necessary to watch its workings in a community essentially cosmopolitan, and probably there is nowhere to be found a more mixed collection of nationalities than in the treaty ports along the coast and rivers of China. The whole system culminates in the large port of Shanghai, where there are resident from seven to eight thousand foreigners and many more than half a million Chinese. It is here that his Britannic Majesty's Supreme Court for China and Corea sits, which is a Court both of first instance in Shanghai and of appellate jurisdiction from the Consular Courts of other treaty ports in China. The judicial centre of all the other Powers is also in Shanghai.

Basis of the Extra-territorial Court. The broad principle on which the system of extra-territorial Courts rests is that in the case of any litigation, dispute, or charge, whether civil or criminal, the tribunal shall be the tribunal of the defendant's nationality, administering the laws at that time in force in the country of that defendant. That right was secured to the British by the treaty of Tientsin, 1858, Arts. 15, 16, and 17; to the French by the treaty of Tientsin, 1861, Art. 35; and all the other Powers have at various times secured similar privileges. By the operation of the most favoured nation clause, Art. 24 of the treaty of Tientsin, 1858, between China and the United States of America has secured to European Powers the right of trying claims against their subjects by their own officers sitting alone without the intervention or assistance of the Chinese authorities. Claims, however, against Chinese subjects are tried by the Chinese magistrate with the assistance of an assessor of the plaintiff's nationality. (See, as to the workings of a similar system in Japan under the old treaties, The Imperial Japanese Government v. P. and O. Company, 1895, A.C. pp. 652, 653.) "Quot Gentes, tot fora."-The result is that there are as many Courts sitting in Shanghai as there are nationalities, and that claims must always be presented in the national Court of him against whom the claim is made. It is proposed to consider these Courts, first as touching their inherent power and capacity, and secondly as to the nature of the law administered in them.

Foreign Plaintiff in British Court.-In the first place it should be noticed that where a plaintiff comes into the Court of a defendant of a different nationality to his own, the Court has no control or power over that plaintiff. In the British Court, by the Order in Council of 1886, s. 2, sub-s. b, it is provided that a foreign plaintiff shall first of all file a submission to the British jurisdiction, but it is doubtful if this submission is worth the paper it is written on. If the foreigner perjures himself, or in any way conspires to defeat the ends of justice, the British Court would have no power to punish him except by a prosecution in his own Court, and in so far as the laws of that Court recognise the criminality of his conduct. Similarly, if the defendant is not successful in his defence, but has a valid counterclaim against the plaintiff equal to or exceeding the amount of the claim, not only is the Court unable to enforce this counterclaim, but even to entertain it (The Imperial Japanese Government v. P. and O. Company, 1895, A.C. 644). The practical hold that the Court has over a foreign plaintiff is limited to the actual amount of that plaintiff's property which it is able to bring into its physical possession.

Security for Costs. For this reason all the European Courts in practice demand a considerable security for costs to be deposited on presentation of a claim. The Chinese or Mixed Court is the only Court where this practice is not in force. In the British Court it is provided by Order in Council, 1886, s. 2, sub-s. b (iii), that the Court may order security to be given to its satisfaction, and it has been held that this may be done at any stage of the proceedings (Hung Chee Foo: North China Herald, September 15th, 1887). A different but highly important limitation on the powers of the exterritorial Courts concerns the law that they are empowered to administer in questions of land.

Land and the "Lex loci."-The principle that the law that governs land is the lex loci must be assumed to hold good, and consequently theoretically it is the Chinese law that must be administered by the British and other European Courts in China. In practice, however, lawyers have always assumed that English law applies in Shanghai, and the English form of conveyance is employed. It was held by Sir Nicholas Hannen C.J. in 1899 (Watson v. Hanson: North China Herald, June 12th, 1899, vol. lxii. p. 1078) that English law governed the distribution of the real estate situate in China of a deceased person; but it seems that this decision is now vitiated by the recent decision of the Privy Council on appeal from Zanzibar (The Secretary of State for Foreign Affairs v. Charlesworth, Pilling & Co., 1901, A.C. 373). The result of that decision would appear to be that in land cases the British Court not only must administer Chinese law or the lex loci, but that it must take judicial cognisance of the law of China and administer it as a Chinese authority (ubi sup. at p. 385).

The British System: Separation of Judicial and Executive Offices.-To turn from the extent of the jurisdiction of the various extra-territorial Courts

to the mode in which the law is administered by them, it is at the outset necessary to draw a clear distinction between the law administered by the British Supreme Court and that administered by all the others. The British system is the only one in which the judicial office is severed from the executive, and in which there is a judge whose duties are judicial and nothing else. The Chief Justice of his Britannic Majesty's Court consequently sits as a judge at home, and may be expected to administer justice with the same impartiality. All the other Powers vest their judicial authority in their respective consulates, and the Consul-General or delegate of the consular office sits as the judge of the Court. The fact that the duties

of a consul are in the first place executive necessarily tends to vitiate his capacity as a judge. The consular officials are not necessarily--and seldom in fact are-members of the legal profession, and the fact that it is the first duty of a consul to protect his own subjects necessarily clashes with his first duty as a judge.

The Chinese Mixed Court.-The same causes militate against the success of the Mixed Court, wherein a Chinese magistrate sits as judge with the assistance of an assessor of the plaintiff's nationality. Both the assessor and magistrate are too apt to become advocates of their respective nationalities and to bring matters to a deadlock or an unsatisfactory compromise. More seriously does this Court suffer from the want of legal training on the part of the tribunal and the absence of any system of law which it is supposed to administer. As an instance of the first may be quoted a Mixed Court judgment of which the writer has personal knowledge. "This case involves very many difficult points, and the parties must settle the matter among themselves and not cause any further litigation." As to the law that is administered in the Mixed Court, it is by treaty the law of the defendant's nationality; that is to say, Chinese law.

Its Defects. But the law of China is practically limited to criminal law, and is totally inadequate to the needs of the commercial communities at the treaty ports. The result is that the only idea of the law to be there administered both among the legal practitioners when in that Court and in the Court itself is a general idea of what is fair. The inherent capacity of such a Court to develop a system of the law of the custom of the port is wrecked by an unsatisfactory system of reporting and a multiplicity of assessors of various nationalities who do not consider themselves bound by previous decisions of the Court. There is a natural tendency to refer all commercial disputes to the arbitration of a merchant in the place, and this merchant attempts to decide the case according to his idea of the custom of the port. But the privacy of arbitration prevents these customs from ever crystallising, and there is, further, a natural tendency on the part of a foreign merchant to decide that the custom is against the Chinese.

The Extra-territorial Court of the Future.-It will appear from the above that the exterritorial system is in its workings not a little confused. Every

civilised nation has its own Court, each administering its own laws, and with one exception through a tribunal not composed of professional men, while the busiest Court of them all, the Chinese or Mixed Court, does not profess to administer any system of law at all. It is clear that with the growing size and importance of the European communities at Shanghai and elsewhere the system cannot last very long. The germ of the future administration of justice is perhaps to be found in the Court of Consuls, the Court in which suits against the Municipal Council, the governing body of Shanghai, must be brought. This is a Court which is established by the Land Regulations for the foreign settlements of Shanghai, and sanctioned. by a memorandum signed by the Ambassadors or Charges d'affaires of Great Britain, Germany, France, Russia, and the United States of America, and dated October 21st, 1869. This Court consists of a selection of the consuls of the various nationalities usually, three in number, and is presided over by the senior consul. It administers no particular system of law; but in spite of this defect its superiority in extent of jurisdiction and prestige seems to give to it a greater hope of further development than any of the other Courts that are established in the foreign settlements in China.

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