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to blame: and they subsequently moved for leave to file a counter-claim against the Government, claiming damages for injuries sustained by the "Revenna": also for an order that the suit and counter-claim be heard together, and that the petitioner should give security for costs to abide the decision on the counter-claim. The Judge refused leave: but the Supreme Court for China and Japan (as the Court at Shanghai was then called) reversed the decision, and made the order prayed for. The Japanese Government appealed to the Privy Council. It is obvious that on these facts practically the whole question of the jurisdiction of the Consular Courts would have to be enquired into.

The first proposition laid down in the judgment was, that Counter-claims against natives it needed no argument to shew that if the claim for damages plaintiffs in Brimade by the Company "were not set up by way of counter-claim, tish Court. the British Consular Court would have no jurisdiction to entertain such an action in invitum against a Japanese subject. The proper forum would be a Japanese Court." Dealing then with the argument that the Consular Court ought to dispose of both suits in order that complete justice should be done, and that a counter-claim was the proper way in which it should do so, Lord Herschell, C. pointed out that it was only in recent years that it had become the general practice to allow such counterclaims in the English Courts. But that, apart from this, "the argument overlooks the limited scope of the jurisdiction which the Consular Courts are authorised to exercise:" that is to say, that they had exclusive cognizance only of complaints brought against British subjects, but that on the other hand, the territorial Courts alone were competent to deal with claims against a Japanese subject: "there is nothing to take away this natural right. It is indeed expressly recognised by the treaties."

by a Native plaintiff "It is to the jurisdiction: British he has a right to

does not submit

sue in British

The question of the submission to the British Courts Japanese subject suing in them was then dealt with. said, however, that if a Japanese chooses to sue in a Consular Court he submits to its jurisdiction in all respects: so Courts by treaty. that if, according to the rules by which its practice and procedure are governed, a defendant is entitled to set up a counter-claim,

*I am compelled to retain the references to Japan in this judgment. It will of course be understood that this is the Japan when foreign jurisdiction was in force there. In its application to the present day, the judgment should be read as if China were substituted for Japan.

the plaintiff cannot escape from the obligation to submit to adjudication upon it. He has elected his tribunal, and he must take the consequences of that election. Their Lordships think that this is altogether a false view of the situation. It is not a matter of election on his part to seek his remedy in the Courts of the defendant's country. He has no choice. The defendant has obtained, by virtue of the treaty made with his Sovereign, complete immunity from process in the territorial Courts which would otherwise be open to the plaintiff. It is difficult to see on what ground a British subject can insist, when sued in his own Consular Court, that the Court shall take cognizance of and adjudicate upon a claim which he makes against a Japanese. It appears to their Lordships that it would be in violation of the treaty, and in excess of the jurisdiction which the sovereign power of Japan, in derogation of its sovereign rights, has granted to the British Consular Court, if it were to yield to such a contention." The next step in the argument is obvious: if counter-claims were allowed in the British Courts a similar right could not be denied in the converse case of an action brought by a British subject against a Japanese in the Japanese Courts, if their practice sanctioned counter-claims. To allow counter- "The point is one of no small moment. If the respondents' claims against natives in British contention be well founded, it must apply equally where a British Courts, would involve counterclaims against

British suitors in local Courts.

subject brings an action in a Japanese or Chinese Court in respect of a claim against a Japanese or Chinese subject. The Japanese or Chinese Court would be entitled to allow a counterclaim to be made against a British subject, and to require security to be given to satisfy the counter-claim, whatever its amount, and however much in excess of the claim, and to stay proceedings in the action until the security was given. The effect would be to deny the British subject any redress in the local Court except upon terms of his submitting to its arbitrament a dispute which under the treaty was reserved exclusively for the determination of the British Consular Court. Such a proceeding would, in their Lordships' opinion, be clearly inconsistent with treaty rights, and it can be no less so when it is made a condition of suing in the British Consular Court that the Japanese shall submit a claim against himself to the jurisdiction of that Court, and give security so as to enable it to render its judgment effective, in case it should be unfavourable to him."

The consequences of this decision were said to involve a hardship on the Company, and the practical side of this question in a collision case were dealt with at the end of the judgment, and do not concern us here: but Lord Herschell pointed out that if there were hardship or inconvenience, it was "the necessary result of the immunity afforded to British subjects from suit in the local Courts. It is the price which they must pay for this The decision is immunity. But for the treaty, they would be liable to process in the consequence of the immunity the Courts of Japan. Those Courts would have complete juris- granted by treaty. diction to deal with the case, whether the defendant were a British subject or a Japanese. A British subject cannot claim the advantage of being amenable exclusively to his own Consular Court, and at the same time object to the limited jurisdiction which alone it possesses."

The incidental point raised that the action was in reality brought by the Emperor of Japan has already been referred to.

It is now established that the Sovereign of the oriental country c. p. 171.
may sue in the British Consular Courts, the principles which
govern proceedings by foreign Sovereigns in the English Courts
being applied.

between actions by natives and

It is apparent from this judgment that the case of actions by or Distinction against natives in the British Courts rests on an entirely different footing from that of actions by or against foreigners: the latter, those by foreigners. as we have seen depends on sufferance where the foreigner is defendant, the former rests entirely on the treaty. This being so it is a little difficult to understand why art. 151 should have cf. p. 173. been so drafted as to apply to natives as well as to foreigners. It does not seem consistent with the principles enunciated by Lord Herschell to interpose between natives and their access to the Court the conditions that the consent of his Government should be obtained, or security for costs given. The fact that the conditions are only insisted on at the discretion of the Court does not affect the question of principle involved.

NOTE.-In order to make the analysis of this important case complete, I must not omit the following reference to the question what remedy a suitor has if the Order in Council exceeds the treaty grant: "Their Lordships do not find it necessary to express any opinion upon the arguments addressed to them in relation to the construction of the Orders in Council. It is clear that these could not operate to confer a jurisdiction upon the British Courts in Japan wider than was acquired by treaty. If indeed an Order in Council in terms prescribed something which was inconsistent with the treaty, it may

cf. Section III.

be that the Consular Judge would be bound to conform himself accordingly, and that the party aggrieved would have to seek redress through the diplomatic intervention of his Government. But no such difficulty arises in the present case. There is no necessary conflict between the treaty rights and any of the provisions of the Orders in Council. They may all have full effect given to them without stretching the consular jurisdiction beyond its legitimate treaty limits."

The suggestion contained in this sentence does not support the position advanced in the early parts of this book, that a suitor is entitled to raise the question of variance between the Order in Council and the treaty before the Consular or any Court. It was not a considered expression of opinion, and it is the only part of the judgment which, if I may say so with all respect, does not contain an authoritative statement of the law. It must, however, be noted that the same opinion was given by Dr. Lushington in the Laconia, already cited. 2 Mo. P.C. (N.S.) It is submitted that the law is as it has been stated in Section III. at p. 181; cf. ante pp. 41, 45.

the Laconia,

cf. p. 38.

Extra-territorial Exercise of the Judicial Power.

The next question to which we must turn our attention is one of considerable importance, which has been referred to from time to time in the foregoing pages: how far any extra-territorial exercise of the judicial power is justified.

There are some crimes committed beyond the realm which the State is justified in punishing: the effective administration of the cf. Nationality," criminal law in an empire such as ours demands extra-territorial

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Vol. II.

provisions in aid: the necessities of commerce have compelled the Courts to assume a jurisdiction over absent defendants in certain cases which have been embodied in Rules of Court, and a similar jurisdiction is assumed in many cases, sometimes by statute, sometimes of their inherent power. Thus for practical reasons, neither the civil nor the criminal jurisdiction of the English Courts can be limited territorially. The question arises, therefore, whether the Consular Courts, which are erected on their model, can be invested with a similar extra-territorial jurisdiction. The question is strictly speaking twofold, and may be stated in this way: first: Is there any warrant for extending the English exterritorial legislation and practice to the Consular Courts? secondly: Can those Courts be invested with such extra-territorial jurisdiction as is necessary to the more effective discharge of the duties which exterritoriality imposes upon them.

The fundamental idea of exterritoriality involves this cardinal Territoriality of consular jurisdicproposition, that the territorial area within which the rights are tion. exercised must be coincident with the territory of the Sovereign cf. p. 11. who grants them. The treaties are invariably so drafted as to bear this construction, the jurisdiction granted being expressed to be over British subjects in the country in which it is acquired. There must, therefore, be added to the fundamental principles governing the subject, this further one, that the jurisdiction must be exercised territorially and not extra-territorially. In its criminal side the territoriality of the jurisdiction is still further emphasised for the criminal clauses of the treaties Emit its McLeod v. A. G. of New South exercise to crimes committed in the oriental country, thus recog- Wales, 1891, nising the maxim that "all crime is local" (see McLeod v. A. G. of New South Wales).

But it may be that the same necessities which have compelled the extension of the civil and criminal jurisdiction of the English Courts also apply to the Consular Courts, in which case sufferance must be appealed to for the justification on principles which are now familiar. When we come to examine the special jurisdiction of the Court in the case of bankruptcy, the importance of the questions will become apparent. For the present, however, we must examine the broad general extensions which have been made by the Act of 1890, and by the Orders in Council. The questions which require special attention are-with regard to criminal jurisdiction, the extra-territorial legislation of the United Kingdom, high sea offences, and the different cases in which deportation of offenders is provided: and with regard to civil jurisdiction, procedure against absent defendants.

Extra-territorial Legislation of the United Kingdom.

This legislation is divisible into two heads: laws which deal with offences on the high seas, and those which deal with offences committed beyond the realm. The whole of this legislation is included in the general extension of the criminal law of England to the Consular Courts; and in so far as the second category of statutes is concerned, there can be no doubt that they are applicable to oriental countries, and that in virtue of the general provisions of the Orders in Council, the Consular Courts have jurisdiction to try offences under them when committed by British subjects within the limits of the Order.

A.C. 455.
cf. Nationality,"
Vol. II, Chap. III.

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