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referred to, nor the questions of law resulting therefrom mooted. Note on the There was indeed a certificate from the Secretary of State for Foreign Muscat case. Affairs stating that Muscat was an independent State, and that the Sultan was the Sovereign thereof. Presumably, this certificate must have been given in virtue of a request from the Court below, under s. 4 of the Foreign Jurisdiction Act, although even this fact does not appear in the report. In view of the Order in Council, the existence of the King's jurisdiction can hardly have been negatived.
The certificate is, however, consistent with the existence of that jurisdiction, if it be conceded that its exercise may still leave the oriental country an independent Sovereign State. I have not felt justified in advancing such a proposition, as there appears to be a derogation from a Sovereign's independence in the grant of exterritorial privileges, although he has not submitted to such a loss of independence as is implied in accepting the protection of the British Crown; it may be that this is the true meaning of the certificate issued in the case of Muscat.
The statement in the text is based on the supposition that foreign jurisdiction is exercised in Muscat: as to its soundness, however, I do not think there can be any question.
The case will be again referred to in connexion with the questions of the territorial waters of an Oriental State, and of the law applicable to torts committed in such State.
There are many forms of exterritoriality, varying according to Protectorates and countries subject the terms of the treaty by which the rights are granted: but to foreign juristhey may be broadly divided into two groups-the first, which diction. includes all those cases in which the grant to the foreign Sovereign does not include more than the exercise of jurisdiction over his own subjects in the country: the second, in which a special relationship is established between the two Sovereigns themselves vis à vis other Powers, which is described appositely as "Protection." The questions which attach specially to this second group are purely political, and we need not concern ourselves with them. There is indeed involved in protection an exercise of jurisdiction similar to that exercised in the common form of exterritorially: but it must of necessity be larger in its scope, including a jurisdiction over natives, and, in its widest sense, over foreigners, usually identical in all respects with that exercised over subjects, although, of course, it may be varied by the terms of the arrangement by which the protection is created: an arrangement to which other Powers may be parties.*
* cf. Zanzibar Order in Council, 7 July, 1897, art. 5.-This Order extends to British subjects and to foreigners with respect to whom the Government whose subjects they are has, by treaty or otherwise, agreed with Her Majesty for, or consented to, the exercise of power or authority by Her Majesty: and the expression "person subject 10 this Order" shall be construed accordingly.
It is obvious, however, that protection, so far as the purely legal aspect of the case is concerned, differs only from exterritoriality in degree, and we need not, therefore, pause to consider its varied forms. It is obvious also that the rights exercised by the King in protected States are in their nature the same as those exercised by him in a non-protected State which has granted exterritorial privileges. They are acquired by treaty, and they are exercised subject to, and in accordance with, the provisions of the Foreign Jurisdiction Act. The rights acquired in Cyprus. by the Convention with Turkey, of 4 June, 1878, are also exercised in virtue of the Act.*
It is clear from the foregoing discussion, that the privileges of the privileges. conferred by exterritoriality are purely personal to the subject, and that so far as the Sovereign is concerned, they are strictly and accurately defined by the term "jurisdiction", which, by s. 16 of the Act of 1890, includes "power." In other words, that the King is granted jurisdiction over his subjects, and that, as a result, the subject obtains certain definite immunities-" complete personal protection, assurance of satisfactory judicial tribunals, and such enjoyment of his property for himself and those who claim under him, as British law would afford him for British property."
IGOI, A.C. at p. 384.
Sec. of State
No territorial rights acquired.
This explanation of the privileges of exterritoriality was given by the Judicial Committee in the Zanzibar case referred to above. The question in dispute arose out of the compulsory purchase of land by the British Government for the construction of the Mombasa railway. Subsequently to the purchase by Charlesworth, Pilling & Co. of certain plots of land, the Government engineers. had entered upon them without lawful authority, and had erected certain buildings thereon. The plaintiffs contended that their rights were governed by English law, and that, therefore, the buildings had become attached to the soil and belonged to them.. It was decided that as the law of England recognizes the principle that the incidents to land are governed by the law of its site, the Consular Court in administering English law would have regard to that principle in this case, and would, therefore, apply the law of Zanzibar, which is Mahommedan law, and which differed in this respect from English law. The contention that exterritoriality warranted the application of the English law was rejected, except in so far as it recognized the law of the site. "It is
going a long way beyond the reason for the immunities" granted by exterritoriality, "to say that the moment a plot of land is purchased by an Englishman it is stamped with the same. character and is attended by the same incidents that would belong to it if it were actually transferred to England and surrounded by other English land: and to say that his neighbours, who may or may not be British subjects, must have their rights and liabilities governed by its fictitious and not by its actual situation." The grant of exterritoriality does not involve any such conclusion, even if foreigners are included in the jurisdiction granted.
The right claimed was not a personal right, but one which in eye of the English law, attached to the land itself, and therefore fell outside the grant of jurisdiction over his subjects to the King.
1892, A.C. 75.
The Judicial Committee had already laid down the same doctrine in McArthur v. Cornwall, with regard to the juris- McArthur v. diction which is claimed in the Pacific Islands:-"It is true that the Pacific Islanders Protection Act does not and could not give jurisdiction to Her Majesty over land in Samoa; but the Order is clearly framed to give jurisdiction over British subjects in questions affecting land to the High Commissioner's Court, and must be held to do so in all those places in which Her Majesty has been enabled to give it by the assent of the ruling Power."
The area within which the jurisdiction is exercised is coinci- Area within dent with the limits of the country from which the right has been which the jurisacquired, subject, of course, to any limitation which may be exercised. contained in the agreement. The expression "Limits of the Order" is generally used in the Orders in Council to express this.
The necessity for referring to what must appear obvious arises from the fact that in China (and formerly in Japan) there are specific ports at which alone foreigners have a right to trade and reside-hence called "Treaty Ports"-the far-eastern States Treaty Ports. having in the past completely closed their territories to foreigners:
and an erroneous idea is sometimes found current that the
operation of consular jurisdiction is limited to these ports.
Within these Treaty Ports certain areas are set apart for Concessions and the residence of foreigners: sometimes called a "Concession,"
as in the case of the Shameen in Canton, and sometimes a "Settlement", as in the case of Shanghai. These names convey their own meaning: the former being in fact expressly conceded to the British or other Government, carrying with it the right to grant leases: the latter being a right granted to the subjects of the Treaty Power to reside and trade, but in practice not necessarily limited to those subjects. The right to acquire land in perpetual lease from the Chinese Government is attached to the privilege of settlement.
The grant of a Concession or Settlement usually carries with it the right of municipal control. In Shanghai the different settlements save one, have been merged into one Municipality, governed by Regulations, made by the representatives of the different Powers interested. So far as these concern and affect British subjects, they are treated, after they have received [see arts. 156 and the approval of His Majesty, in the same light as “King's Regulations".
157 of the China
"Limits of the Order" include
But to however wide an extent such a Municipality may exercise its powers of local self-government, this in no wise affects the general principles of the subject: and these, so far as this branch of it is concerned, are-first, neither the limits of the Concession or Settlement, nor those of the Treaty Ports, are the limits of the consular jurisdiction in the country: secondly, the rights of municipal control do not carry with them, nor their exercise import, any territorial rights of sovereignty, the principles laid down in the Zanzibar case being as applicable to the case of a Concession as to the rest of the country.
But the "limits of the Order" generally include the territorial territorial waters waters of the foreign country: and here not a little difficulty arises of oriental State. over what I venture to think is the still unsettled law on the subject of these waters. The question is discussed at length in "Nationality," another work. It is, however, necessary to give a summary of the Vol. I, Chaps. 2 & results of that discussion, in view of certain dicta in the Muscat case, which I feel compelled, with the most profound respect, to criticise.
Vol. II, Chap. 5.
41 & 42 Vict.
2 Ex. D. 63.
An analysis of the Territorial Waters Act, 1878, and of the decisions in the Franconia case (R. v. Keyn), and in R. v. Cunningham, leads, as I believe, to the following conclusions. 28 L. J: M.C. 66. The "territorial waters" are not, but differ entirely from, the "waters of the realm": legislation does not extend automatically
R. v. Cunningham,
to them as it does to the waters which are part of the realm, although Parliament has ample legislative authority over them, which is occasionally exercised specially, as in the case of the Fisheries (Dynamite) Act, 1877, but more usually in a general 40 & 41 Vict. c. 65. manner, as being included within the application of high sea legislation. These waters do not exist without definite claim Nature of being made to them, but the right to make such claim is recog- waters. nized for all purposes, especially for the purposes of defensive legislation, other than that of preventing free navigation. When they are so claimed, they are not limited to what we in England know as the " 3-mile limit," but may extend to such distance as the State claiming them considers necessary for its self defence, so long as it exercises the right within the limits of reasonable necessity. The 3-mile limit is the creation of English law, and is not recognised as the universal limit by international or any other law; though it is adopted in the North Sea Fishery Conventions.t Further, the Territorial Waters Act has not +f. "Nationality," in any way altered these principles: for, in spite of the declaration Vol. II, Chap. 9. in the preamble that "the rightful jurisdiction" of the Sovereign "extends and has always extended over the open seas adjacent to the coasts . . . to such a distance as is necessary for the defence and security of the dominions," the Act proceeds to enact provisions which are directly at variance with this expression as commonly understood that it is synonymous with actual inclusion within the realm.
In the Muscat case in the House of Lords, Lord Halsbury Carr v. Fracis, said—“Then comes the other question . . . It is that this act A.C. 176. Times, 1903,
2 Ex. D. 63.
was not done within the territorial waters of the Sultan at all. The authority of R. v. Keyn was cited in support of this R. v. Keyn. contention of the respondents. It is an unusual occurrence— but it happened-for the Legislature of this country to pass an Act of Parliament to reverse a judgment of a Court. But the Territorial Waters Jurisdiction Act, 1878, affirmed in terms that the judgment of the majority of the Judges in R. v. Keyn was not the law of England, and declared that the law as in the Act set forth had always been the law of this country."
The reversal of the decision of the majority of the Judges in the Court of Crown Cases Reserved was not enacted in express terms: and there is a well-known principle that "though the Legislature may declare the law by enactment, yet they are not