of Illustration loose method of intent. In construing such instruments a too slavish adherence to the letter would be out of place, although, of course, violence must not be done to the language used." In order to illustrate the somewhat loose way in which legal drafting treaties. questions are dealt with in these treaties, I may refer to art. xxiii of the Treaty of Tientsin. This article confers a most important right on the merchants of Hong Kong, but it is drafted in language which if interpreted in any narrow spirit would reduce the benefit appreciably, and which, so far as it deals with the Courts of the Colony, is such as even a layman would seldom use. Treaty of Tientsin, 1858: art. xxiii. Examination of jurisdiction clauses. +[see O. in C. Should natives of China who may repair to Hongkong to trade incur debts there, the recovery of such debts must be arranged for by the English Courts of Justice on the spot; but should the Chinese debtor abscond, and be known to have property, real or personal, within the Chinese territory, it shall be the duty of the Chinese authorities, on application by and in concert with the British Consul, to do their utmost to see justice done between the parties. The common form of the treaty clauses dealing with jurisdiction, must now be examined. I take the text of the clauses of the old treaty with Japan, because, although it was concluded two months after the Treaty of Tientsin, there is a curious slip in the drafting of these clauses which brings into strong relief the importance of the question of interpretation. Treaty of Yeddo, 1858. IV. All questions in regard to rights, whether of property or person, arising between Bricish subjects in the dominions of His Majesty the Mikado of Japant, shall be subject to the jurisdiction of the British authorities. V. Japanese subjects, who may be guilty of any criminal act towards British subjects, shall be arrested and punished by the Japanese authorities according to the laws of Japan. British subjects who may commit any crime against Japanese subjects, or the subjects or citizens of any other country, shall be tried and punished by the Consul, or other public functionary authorized thereto, according to the laws of Great Britain. Justice shall be equitably and impartially administered on both sides. Now, if the question be asked, under which of the above clauses could jurisdiction have been exercised in the case of an assault by one British subject on another? we are driven to decide between two most unsatisfactory alternatives: either the obviously civil formula "questions in regard to rights whether of property or person arising between British subjects", in clause iv, must be held to include criminal jurisdiction in the same matters; or British subjects must be included in the sentence in clause v, "any crime against Japanese subjects, or the subjects or citizens of any other country." Although the first interpretation is possible, and warranted in virtue of the principle now being considered, it is not strictly accurate under a system of criminal procedure in which the proceedings are intituled "the King, on the prosecution of A. B. against X. Y." In the treaty with China the words "British subjects who commit any crime in China" are used to create the criminal jurisdiction. This principle of interpretation may be further illustrated by the case of Hart v. Gumpach, which was an action for libel. It was Hart v. Gumpach, L.R. 4 P.C. 439. assumed all through the case that the right of reputation which is involved in such an action, was not excluded from the jurisdiction of the Consular Court of China by the words "all questions in regard to rights, whether of person or property", in the clause cited above, which also appears in the treaty with China. So, in the case of the Imperial Japanese Government v. P. & O. Co., it was contended that as the treaty only referred to suits in which Japanese subjects were plaintiffs, a suit by the Japanese Government, or by the Emperor of Japan under that name, did not fall within the treaty. The Judicial Committee declined to accept this view, more especially as the result would have been to render British subjects, defendants in such suits, amenable to the local Courts. Japanese Govmt. v. P. & O. Co., 1895, A.C. 644. The Exercise of the Judicial Power as it WE HAVE hitherto considered the King's foreign jurisdiction. The fact with which exterritoriality deals is the presence of wes- of judgment in the Indian Chief, tern merchants in an oriental country, where, "from the oldest times, 3 Rob. Adm. at an immiscible character has been kept up": where "foreigners are p. 29. cf. p. 10. not admitted into the general body and mass of the society of the nation:" where the laws, inapt to accommodate themselves to western ideas, have no standards appropriate to the settlement of disputes among the merchants. The method by which the system deals with the problem is to remove the merchants, their disputes and offences, from the operation of those laws, placing them under the jurisdiction of their own authorities. But the very simplicity of the remedy has entailed difficulties peculiar to it. For when one nation steps into the markets of the East, others are bound to follow, claiming the same privileges and exemptions from the operation of the native laws. So, where there is one exterritorial treaty there are generally several, the rights accorded to one Power being granted to the others, and, as we have seen, the whole being assimilated by the mostfavoured-nation treatment. But this creates a series of independent communities, each governed by its own laws, the whole The system treats without coherence. The system deals only with the elements foreign commuof which the "foreign community" is composed, not regarding it nities as indepen- as a unity, nor providing means for settling the disputes which the different dent. must arise between the members of the different national communities. In a country such as Egypt, where the interests are of great importance, the remedy for this state of affairs has been found in the establishment of Mixed Courts: but this is the only attempt which has been made to arrive at combined action between the different Treaty Powers. To a certain extent the close proximity of a Colony to a Treaty Port, as of Hong Kong to Canton, eases the strain: for the jurisdiction of English Courts is built on so broad a foundation, that cases which would otherwise be heard by the Consular Court are often tried in the Courts of the Colony. But obviously this is an insufficient substitute for the general principle which is lacking in some treaties. In others, the question is partially dealt with. Thus in the Corean treaty the British judicial authorities are vested with jurisdiction to "hear and determine all cases brought against British subjects by any British or other foreign subject or citizen": and the same right is accorded to the other Powers who have entered into treaties with the once-called Hermit Kingdom. This provision links the foreign communities in Corea into one for cases which fall within the normal jurisdiction of Courts of Law: that is to say, so far as suits by foreigners against defendants in their national Consular Courts are concerned. But this only deals. with one branch of the question. Chinese treaties. In the Treaty of Tientsin the subject is not dealt with: but in Provision in the the Chinese treaties with France, Germany, Austro-Hungary, and the United States, there is a negative provision to the effect that the Chinese authorities shall not in any manner interfere in any dispute between the subjects or citizens of those countries respectively and other foreigners. The most favoured-nation clause makes the article in the Chinese treaties with these Powers appli- cf. p. 45. cable to Great Britain. This may, therefore, be treated as equivalent to the positive provision of the treaty with Corea. Putting on one side, however, the express provisions of the Position of treaties which may deal with the question, it is essential to con- foreigners in the absence of provisider the position of foreigners in the abstract, from the point of sion in the treaty. view of a treaty which contains no such provision. And, moreover, these express provisions do not deal with jurisdiction exercised over foreigners as defendants in actions brought against them in the British Consular Courts by British subjects, which is sanctioned by the Order in Council; nor, conversely, with actions brought against British subjects in the Consular Courts of other countries. The possibility of such jurisdiction being exercised. must now be considered. It is necessary, however, in the first place to determine who Who are come within the definition of "foreigners": where the line is to who native.." "foreigners," and be drawn between "natives" of the oriental country and foreigners, for a similar question arises in connexion with "natives," that is, subjects of the oriental country. It may seem almost superfluous to say that "foreigner," for the purposes of this discussion, means the subject of a Treaty Power: and that all others, whatever their nationality, must be included in the term "native"; for being without the protection of an exterritorial treaty, they must be subject to the native laws and tribunals. China Order, The definition of "foreigner" in the China Order includes "a Definition of subject or citizen of a State in amity with His Majesty, including "foreigner": China and Corea," no distinction between foreigners and natives art. 3. being made. But the distinction, as we shall presently see, is an important one, and it would seem to have been through oversight that it has not been recognised in art. 151. It follows, from what has been said on the general theory of the subject, that among the fundamental principles which are as cf. Section I. " of Nationality, Vol. I, Chap. XII. Subjects of nontreaty Power have no privileges. Protection of foreigners resulting from factory system. applicable to Eastern as to Western States is the one for which we have invented the inappropriate name "Temporary Allegiance." The privilege of exterritoriality withdraws the subjects of the State to which it has been accorded from that psendo-allegiance; that is, exempts them from obedience to the laws of the oriental State in which they reside.* But failing a grant of such privilege those laws prevail; and a subject of a State which has not entered into an exterritorial treaty is bound by those laws so long as he remains within the sphere of their operation. In the early days of our intercourse with oriental, and even some other, nations, the difficulties of the situation as it then existed were partly overcome by what was known as the factory system, and it is necessary both to understand its scope and to realise that it has now disappeared. The law applicable to that system was explained in the judgthe Indian Chief, ment in the Indian Chief:-"It is to be remembered, that 3 Rob. Adm. 12. wherever even a mere factory is founded in the eastern parts of the world, European persons trading under the shelter and protection of those establishments are conceived to take their national character from that association under which they live and carry on their commerce. It is a rule of the law of nations, applying In China, and I may say peculiarly to those countries . . . generally throughout the East, persons admitted into a factory, are not known in their own peculiar national character: and being not admitted to assume the character of the country, they are considered only in the character of that association or factory." Having referred to two other examples of the application of the principle, Sir W. Scott continued, “I remember perfectly well, in the later case of Mr. Constant de Rubecque, it was the opinion of the Lords, that although he was a Swiss by birth, and no Frenchman, yet if he had continued to trade in the French factory in China, which he had fortunately quitted before the time of capture, he would have been liable to be considered as a Frenchman.” The "Factory" was an establishment tolerated by the State in which it was set up, which, apparently for the convenience of all parties, was withdrawn, as well as all persons therein residing, from the operation of the local laws. Such an establishment existed, I believe, even in St. Petersburg. *Though not from all laws: see p. 8. |