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no sanction of the State within whose territory such oath is administered. If a State empower a foreign Consul to administer an oath, such oath would be binding in foro loci, and it is submitted that perjury would be punishable in such instance not by the State of the foreign Consul, but by the State where he was exercising his consular functions,
If a person making a false affidavit, to be used in an English Court (and such affidavit has been administered by a British Consul, authorised no further than by a British Act of Parliament) is punishable at all, he is punishable, when he comes within British jurisdiction, for a misdemeanour in procuring an English Court to act upon the credit of a false and fraudulent voucher. A person injured by such affidavit would, under the above circumstances, not be without his remedy, nor would the Court be without due means of punishing in respect of the abuse and contempt committed against its authority.*
So strongly has the proposition concerning the territorial character of the crime of perjury been entertained in Prussia, that in November, 1876, the Minister of Justice issued directions, that no foreign consul in Prussia should administer any oath, or take any affidavit.
Again, by the law of Switzerland, oaths are abolished, and are replaced by affirmations.
Without discussing the laws of other foreign countries, it is evident that, at least, in the two States above-mentioned, the lex loci not only does not sanction, but absolutely forbids a foreign consul to administer an oath.
Referring again to the 18 and 19 Vict., cap. 42, it will be noticed that this Statute contains a new provision not to be found in the older Act (6 Geo. IV, cap. 87), which it amended. The provision is as follows :
Any person knowingly and wilfully making any false oath, affidavit, or affirmation before any person having
* O'Mealey v. Newell ut suprd.
authority to administer such oath, or take such affidavit or affirmation, under the said Act of King George the Fourth or this Act, shall be deemed guilty of perjury, and such offender may be charged, proceeded against, tried, and dealt with in any county or place in the United Kingdom, in the same manner in all respects as if the offence had been committed in such county or place.”
It is therefore apparent, that a most serious conflict of municipal law exists. The law of England, by the above Statute, endeavours to create a jurisdiction for its officers within foreign States, and to punish infractions of such jurisdiction; it further enacts by another Statute. (the Common Law Procedure Act, 1854), that evidence submitted to its Courts, including that of foreigners taken within their rational jurisdiction, shall be supported by an oath. On the other hand, foreign States do not of necessity yield that jurisdiction to British officials within their own limits; infractions of such jurisdiction are not crimes by the lex loci ; nor do foreign States of necessity permit their subjects, while within the national territory, to make oaths for purposes required by English courts.
It is again to be remembered that where by treaty, or by virtue of an exequatur, or by foreign law or custom, a British or other Consular Officer may have the sanction and jurisdiction of the territory where he resides, to administer an oath, false swearing or perjury would be a crime, not against the State which such Consular Officer may represent, but against the country or territory where he is exercising his Consular functions.
With regard to our own country, the rule of law appears to be as I have elsewhere shown,* that foreign consuls have
* See a paper on “ The Administration of Oaths in Great Britain by Foreign Consuls,” read at the Eighth Annual Conference of the Association for the Reform and Codification of the Law of Nations, at Berne, August, 1880. Printed by the Association.
no jurisdiction to administer an oath or to receive an affidavit; but with regard to evidence to be used abroad, our law is certainly fairer than that of Prussia, for the 5 and 6 Will. IV. c. 62, which expressly prohibits justices of the peace, or other similar persons, from administering voluntary oaths, purposely makes an exception in favour of “any oath, affidavit, or affirmation which may be required by the laws of any foreign country, to give validity to instruments in writing, designed to be used in such foreign countries respectively.” But even in this case, should the oath taken be false, the offence of perjury would be committed, not against the foreign country for whose purposes the affidavit was required, but against the sovereignty of England in whose territory the offence occurred. Bearing in mind, however the language of Lord Ellenborough in O'Mealy v. Newell, it might well happen that for the specific offence of contempt of the foreign Court, punishment might also attach in the foreign country, should the perjurer ever be found intra praesidia.
The proper remedy, which obviously presents itself to the mind, as a means for determining the anomaly which I have pointed out, is the conclusion of a Treaty. Such Treaty supported, where the Constitution so requires it, by municipal or local law, should define and secure authority to the consul to administer oaths to the subjects of the country he represents, and to such subjects of the country in which he resides, and to such subjects of other States therein commorant, as may find it necessary for the satisfaction of the law of their nationality to make oath or affidavit before such consul. These provisions would, I believe, go far to meet the existing difficulty. The Treaty would of course be reciprocal, and all false swearing would be made perjury, and would necessarily be punishable by the territorial Court as an offence against the lex loci. Moreover, I doubt if it would be too Utopian a desire to suggest that perjury so
created by Treaty, should be made an extraditable offence. Perjury, quà territorial perjury, is already recognised as an extraditable offence. Why not extend that provision to the "extra-territorial” perjury which I have pointed out? The conclusion of a Treaty on the lines here advocated would, I conceive, present no untoward difficulty, while it would, I believe, have the happy effect of removing a great and prejudicial anomaly.
V.-THE VACANT CHIEFSHIPS. THE thirty days, during which the attention of Parliament
is called to the Order in Council for the abolition of the two vacant Chiefships of the Exchequer and Common Pleas, and for the consolidation of the three separate Common Law Divisions of the High Court, will expire in the course of the present month of February, and the Premier has formally promised Sir Richard Cross that he will do his best to afford the House of Commons an opportunity of discussing the proposed change before it is too late. The matter is, as Mr. Gladstone stated, one of great importance to the public, and it must be admitted that it is one with which the public and their representatives in Parliament have, for the most part, very little acquaintance. In truth, there are very few materials which will enable a layman to form an opinion upon it. The deliberations of the Judges who, by a large, though not an overwhelming, majority, formulated the recommendation on which the Order is based, were, of course, conducted in private; and with one notable exception, no member of that learned body has, as yet, taken the public into his confidence. Mr. Justice Stephen has, however, set forth in the January number of The
Nineteenth Century an elaborate exposition of his opinions, and it is to those pages that Sir Richard Cross or any other member of either House in search of 'light and leading' will inevitably turn. Sir James Stephen is no ordinary Judge, and is probably more free than most men from the prejudices of his profession. The services which he has rendered by his labours in the field of law reform, would, apart from his great and acknowledged ability as an author, ensure respectful and close attention for anything he might have to say. At the same time, when a Judge, however eminent, condescends to publish his extra-judicial views, he enters the arena of discussion and must be taken to invite criticism upon them. At present Sir James Stephen remains wholly unanswered, and the forthcoming debate seems in danger of languishing for want of champions from the opposite quarter.
Sir James Stephen rests his general objections to the alteration which both Houses are now asked to sanction on two grounds, namely :-(1.) Its immediate effect. (2.) The effect it may have in the future; or, in other words, its tendency to bring about further changes on which the Judges are not to be consulted. We propose to consider these two separately.
On the first objection, Sir James reasons as follows:Attorneys and Solicitors-General and other men who rise to the very first places at the Bar are, by their antecedents, better qualified to discharge the duties of Judges of First Instance than the duties of Judges of Appeal. Any Attorney or Solicitor-General, either in esse or in posse, would, presumably, accept either of the Chiefships which it is proposed to abolish, and would, as presumably, decline any other Judgeship of First Instance; therefore, he concludes, by abolishing these Chiefships you are depriving the country of the judicial services of the very men who are best fitted to render them. It is obvious that the