Among these, the settlement of disputes between British subjects and natives or foreigners is the most important. Up to the present we have not advanced much further than the recognition of the fundamental idea of exterritoriality, that civil and criminal proceedings against British subjects are to be determined by the British authorities, and those against natives by the native Courts. But the following are the different cases Different categowhich may arise, and each requires special consideration: Criminal jurisdiction. 1. Crime by a subject against a subject. 2. Crime by a subject against a native. 3. Crime by a subject against a foreigner. 4. Crime by a native against a subject. 6. Action brought by a subject against a subject. Two incidental matters of interest must first be referred to: the different forms of exterritorial Courts, and the law governing the interpretation of the jurisdiction clauses of the treaties. Different Forms of Exterritorial Courts. ries of cases in Court. The common form usually known by the name of the Consular Ordinary constiCourt is well understood. It is a Court constituted on the lines tution of Consular of Courts in England, presided over by the Consul, who is invested with judicial powers as distinct from his consular duties, or by a specially appointed Judge. The number of these Courts varies according to the size of the country and of the British community residing in it. In China there are Provincial Courts held by the Consuls of the respective districts, and also a Supreme Court with an original and appellate jurisdiction, in Shanghai presided over by a Judge, formerly styled the Chief Justice. In these Courts civil and criminal proceedings against British subjects are instituted. In other countries their constitution is varied. Variety, in which nised. The first variation specially worthy of note is to be found in the native law recog- treaty with Tonga*. A British subject charged with an offence against the municipal law of Tonga not cognisable as such under British law, is amenable to the jurisdiction of the Tongan Courts. And if charged with a criminal offence cognisable as such both by British and Tongan law, he may elect whether he will be tried by a Tongan Court or by the Court of the High Commissioner for the Western Pacific. Variety, in which presence of native official authorised, where native plaintiff : and of foreign official, where foreigner plaintiff. cf. p. 7. Variety, in which presence of native official authorised The second variation from the common form is to be found in the treaty with Corea. In all cases tried either in the British or Corean Courts, a properly authorised official of the nationality of the plaintiff or prosecutor may attend the hearing, with liberty to call or cross-examine witnesses, and to protest against the proceedings or decision. This provision does not appear to be limited to cases in the British Courts where a Corean, and vice versa, to cases in the Corean Courts where a British subject, is plaintiff or prosecutor. It certainly warrants the presence of a foreign official where the proceedings in the British Court are instituted by a foreigner. This interpretation of the provision is in accordance with the general theory of the subject. A third variation is to be found in the treaty with Kashgar and Yarkund. Civil and criminal cases in which both parties are in all cases: and British subjects are to be tried by the British representative or his agent, in the presence of an agent appointed by the Ameer. Civil suits in which one party is a subject of the Ameer and the other a British subject, are to be tried in the Ameer's Courts, in vice versa. * It is possible that many changes have been made during the last fifteen years in the relations between Great Britain and the countries where exterritoriality is established. Some of the treaties which are referred to in this and other Sections may have been abrogated, or may have merged into more intimate relations. In view of the great difficulty in bringing the Appendix of the former edition up to date, I have not attempted to make this edition one of reference: for the actually existing relations can only be ascertained with accuracy from official publications which are not easy of access in a colony. It may well be therefore, that some of the treaties referred to in the text are now non-existent: they will, however, serve the purpose of illustration of details of the subject, which its complex nature so much requires, which have at one time or other been extant. The necessity of illustration must also be my excuse for referring, as I must do frequently, to the old Treaty of Yeddo. the presence of a person appointed by the British representative. Criminal cases in which neither prosecutor nor accused is a subject of the Ameer, except as above provided, are to be tried in the Ameer's Courts in the presence of a person appointed by the British representative. In any case disposed of by the Ameer's Courts, to which a British subject is a party, the British representative, if he considers that justice has not been done, may represent the matter to the Ameer, who may cause the case to be tried in some other Court in the presence of some person appointed by the British representative. exterritorial in mixed cases. In the second form of exterritorial Court, the official of the plain- Second form of tiff's, or prosecutor's, nationality becomes a Judge; and we come to Court: presence what are known as Mixed Courts, which have jurisdiction over of native Judge cases in which one of the parties is a national and the other a subject, disputes between British subjects still remaining within the sole jurisdiction of the British authorities. Thus in the old treaty with Burmah it was declared that "civil cases between Burmese subjects and registered British subjects shall be heard and finally decided by a mixed Court, composed of the British Political Agent, and a suitable Burmese officer of high rank." Where the foreign community has attained to considerable Evolution of the dimensions, the mixed Courts of different nationalities may be Mixed Court. found to be merged, by consent of the Governments interested, into one permanent tribunal, of which the bench is composed of both native and foreign Judges. Each nationality may or may not be represented on the bench of Judges according to the terms of the mutual agreement. The Mixed Courts of Egypt, (which, it should be noted, do not oust the jurisdiction of the Consular Courts in ordinary criminal matters), are constructed on this principle. They administer the native law, thus introducing the third form of exterritorial Court. International exterritorial In this third form the local sovereignty obtains still further Third form of recognition. The Mixed Court is to administer the national law, Court: native and its sentences are to be executed by the Sovereign of the law administered. country, even in cases in which a national is not concerned. Thus, by the old agreement with Borneo, crimes by British subjects were to be tried by a mixed Court; but disputes between British subjects, or between British subjects and the subjects of any other Power, were to be tried by a mixed Court "according to the customs of Borneo," "and the Sultan will receive the sentences and carry them out." Reconciliation by Causes which jurisdiction clauses in the treaties. It should be noted that in nearly every case the Consul is enjoined, in cases where natives are concerned, to attempt to effect a reconciliation between the parties. Interpretation of the Jurisdiction Clauses. The interpretation of the jurisdiction clauses of the treaties lead to imperfect raises some interesting questions, for their language is often open to legal criticism. The diplomatists who are engaged in negotiating treaties have no lawyers at their elbows to guide them in the use of terms of art and precision in matters which may involve legal questions of great nicety. Even if expert assistance were available, they would probably refrain from using it: for the time which would otherwise be devoted to the settlement of large issues would be frittered away in the discussion of details, introducing fresh points of difficulty, and hindering the progress of the negotiations. Conventions which are entered into for the express purpose of arranging legal questions are of course most carefully drafted: but in the case of exterritorial treaties-which is after all only a convenient expression--it must be remembered that the jurisdiction usually depends only on a few clauses introduced into a treaty dealing with matters of larger moment. To these matters indeed the privilege of exterritoriality is a most important adjunct: but to have laboured these clauses, to have introduced all manner of minor issues, would have fogged the main issue, and done much not only to dissipate the energies of our own negotiators, but also to destroy such good will as the oriental had brought to the negotiation. Many blemishes from the lawyer's point of view exist in the Treaty of Tientsin, and existed in the now-vanished Treaty of Yeddo: such mistakes were inevitable, for it would be absurd to imagine the British Plenopotentiaries cudgelling their brains to find the most exhaustive language proper to dispose of all the disturbing questions which the presence of British subjects in the oriental country might cause, even if it were possible to have foreseen them or their future importance. The lawyer's business arises afterwards: and the nature of the case being what it is, no narrow construction of these jurisdiction clauses, as of the sections of an Act of Parliament, is possible. cf. Section III. I do not lose sight of the fact already insisted on, that the question of interpretation affects not the State only with which the treaty has been entered into, but also the subjects of the Treaty Power whose rights and obligations have been dealt with. The broad general interests of trade and residence have in the first instance been safeguarded: and this should justify in the eyes of the subject the widest possible interpretation of the terms of the treaty, even though his particular interest may, in any given case, appear to be sacrificed. Maltass, This broad view finds its warrant in the judgment of Dr. Lushington in Maltass v. Maltass. The question in issue was, Maltass v. what law was to govern the succession to property of a British 1 Rob. Eccl. 67. subject who died at Smyrna in 1842, his son propounding a will executed in 1834. The learned Judge found that the deceased, although born at Smyrna, was a British subject. The next question was as to his domicil: assuming him to have died domiciled in Smyrna, what was the law of Turkey as to British subjects dying domiciled there? The answer depended on the treaties between Great Britain and the Porte, in which words appropriate to domicil were not used, for reasons which the learned Judge examined with great care. "These reasons," he said, "appear to me to operate most strongly in favour of a liberal and extended construction of the treaties: in my opinion the contracting parties never contemplated the anomaly which a contrary construction would lead to. With regard then to the parts of the treaties applicable to the question we are now discussing, to wit, whether the treaties extend to a permanent residence, and not merely to a temporary visit. The treaties commence at an early period, but they are all included in the Treaty of the Dardenelles (1809). Now, in the construction of treaties of this description, we cannot expect to find the same nicety of strict definition as in modern documents, such as deeds or Acts of Parliament; it has never been the habit of those engaged in diplomacy to use legal accuracy, but rather to adopt more liberal terms. I think, in construing these treaties [the Turkish Capitulations], we ought to look at all the historical circumstances attending them, in order to ascertain what was the true intention of the contracting parties, and to give the widest scope to the language of the treaties in order to embrace within it all the objects intended to be included." This doctrine received the approval of the Judicial Committee in 1895, in Imperial Japanese Government, v. P. & O. Co., in Japanese Govmt. which the old treaties with Japan were in question:-"The V. P. & O. Cu., treaties must be interpreted according to their manifest spirit and p. 657. 1395, A.C. at |