Meaning of
"sufferance."

Its application to jurisdiction over foreigners.

the consent and acquiescence of parties; but it is not the only proof, nor does it exclude other proof; and more especially in transactions with oriental States. Consent may be expressed in various ways; by constant usage permitted and acquiesced in by the authorities of the State, active assent, or silent acquiescence, where there must be full knowledge."

The materials for deciding whether the jurisdiction claimed existed in fact were statutes, Orders in Council, and other documents: and having considered them, the judgment proceeds: "We entertain no doubt that so far as relates to the Ottoman Government, no objection is tenable against the exercise of jurisdiction between British and Russian subjects," which was the jurisdiction exercised and questioned in the case. "Indeed, the objection, if any such could be properly urged, should come from the Ottoman Government rather than a British suitor, who, in this case, is bound by the law established by his own country. The case may, in some degree, be assimilated to the violation of neutral territory by a belligerent: the neutral State alone can complain. We think, looking at the whole of this case, that, so far as the Ottoman Government is concerned, it is sufficiently shown that they have acquiesced in allowing to the British Government a jurisdiction, whatsoever be its peculiar kind, between British subjects and the subjects of other Christian States. It appears to us that the course was this: that, at first, from the total difference of religious habits and feelings, it was necessary to withdraw as far as practicable British subjects from the native Courts: then, in the progress of time, commerce increasing, and various nations having the same interest in abstaining from resort to the tribunals of Mussulmans, etc., recourse was had to Consular Courts: and by degrees the system became general.

"Of all this the Government of the Ottoman Porte must have been cognizant, and their long acquiescence proves consent."

This part of the judgment has been given in its entirety, as it touches on several points of interest. The one which concerns us at the present moment is the very explicit statement of the meaning of jurisdiction acquired by "sufferance". First, there must be "full knowledge" in the Sovereign or Government of the country: and then there may be either "active assent," or "silent acquiescence".

It is difficult, however, to state with precision what the legitimate inference from the decision is as to the amount of publicity

Laconia con

in the exercise of the jurisdiction claimed, from which the Court Decision in the will infer the essential knowledge of that exercise in the Govern- sidered. ment of the oriental State. The jurisdiction granted by the Treaty of Peace concluded at the Dardanelles in 1809, did not extend in civil matters beyond the settlement of disputes between British subjects. The jurisdiction to decide questions arising between British subjects and the subjects of other Christian Powers was given to the Consuls by the statute 6 & 7 Will. cf. Section X. IV. c. 78 [1836], which enabled Orders in Council to be issued regulating its exercise. This statute was repealed by the first Foreign Jurisdiction Act of 1843, which was construed as conferring in its more general terms this same jurisdiction, under which Orders in Council were also to be issued. There is nothing in the report of the case to show that the various documents referred to had been communicated to the Government of the Porte: if they had been, cadit quæstio. But assuming that they had not been so communicated, the Judicial Committee would seem to have adopted the principle that the exercise of a jurisdiction over foreigners—whether by their own consent or with the consent of their Governments is for the present immaterialf-publicly for 30 or 40 years could not have taken place without the Government of the country being cognizant of it; and this extension of the jurisdiction of the Consular Courts not having been objected to, acquiescence was inferred.

In applying this principle to other cases the question of time may obviously become important. How far the Courts would go in upholding a jurisdiction recently assumed is a question which must be left to be determined when it arises: it is sufficient for the present purpose to emphasise the last sentence from the judgment quoted above:-"Of all this the Government of the Ottoman Porte must have been cognizant, and their long acquiescence proves consent."

In this discussion the subsequent enquiry in the judgment whether the Consular Court had full Admiralty jurisdiction, or only a special jurisdiction in rem, is obviously immaterial: because the broad question alone had to be decided in the first part of the judgment, whether the Porte had suffered jurisdiction to be exercised at all between British subjects and foreigners. The subsidiary question was this: such jurisdiction having been suffered, did it include the power for the Court to decide the case. then before it.

[This question is Section X.]

discussed in

Sufferance may also have to be appealed to in respect of the jurisdiction exercised over British subjects—whether, for example, the Consular Court has power to decide the question in issue between two British subjects: such a question as may be inHart v. Gumpach, volved, in a simple case such as Hart v. Gumpach-an action for L.R. 4 P.C. 439. libel: the question being whether the right involved came within the expression "rights of property or person." But the larger question may also be raised:-Is the jurisdiction which the Court claims to exercise within the treaty, or does it rest on sufferance alone? and in this case the dispute must inevitably be decided on the lines above indicated. It is conceivable that this issue might be raised in connexion with the probate or the matrimonial jurisdiction of the Consular Court, neither of which come clearly within the treaty grant of jurisdiction to settle "disputes." And so as to the provisions of the Act with regard to deportation, and to sending prisoners for trial to a neighbouring British Colony. These points will be discussed at a later stage.

cf. Section X.

So much may I think be legitimately inferred from this judgment. But when we turn to the other matters with which it deals, it is submitted that some of them are hardly consistent with doctrines which are now a recognised part of the subject.

As to the vital difference between Christian and non-Christian States which is so much emphasised, it is perhaps sufficient to say that although this is still admitted to be the reason why the grant of foreign jurisdiction is obtained, the modern practice is to treat oriental States on a footing of perfect equality, as States from which certain definite rights can be acquired. The Act itself, even in the case of native tribes, recognises the title of the Chiefs to enter into treaties with the King. With regard to sufferance there can be very little doubt, more especially when it was relied on to supplement the treaty grant, that its province was to extend the jurisdiction actually acquired to some matters not within the treaty which were not of great moment to the oriental State; and its justification was perhaps to be found in an unconscious construction of all the different treaty grants as meaning one and the same thing-the grant of complete jurisdiction over subjects. It cannot be denied, however, that so far as the jurisdiction affects, or is extended to, foreigners, the treaty, in the absence of express stipulation, in no case warrants it, and therefore that it must find its justification in sufferance.

be entitled to

sui- raise the question own that jurisdiction not justified.

The last statement which seems to be questionable in this The suitor should judgment is that the objection cannot be raised by a British tor, because "he is bound by the law established by his country." The last part of the sentence has been so fully dealt with that it is unnecessary to refer again to the matter. The cf. Section III. first part is more serious, and with great respect it is submitted that it is unsound.

It follows that as the jurisdiction in general which is exercised over him in oriental countries is not inherent either in King or Parliament, but depends entirely on the treaty grant, or on acquisition by sufferance, he must be entitled to raise the question which we have already considered, that the jurisdiction claimed over him in any particular instance is not justified.

Most-favoured-nation Treatment.

The "most-favoured-nation" clauses in the different treaties Operation of most-favouredintroduce another element of difficulty into the subject. The nation clauses. actual treaty grant of privileges to any one Sovereign is, by virtue of these clauses, the sum of all the privileges contained in the treaties entered into with all the Powers by the Sovereign grantor. And, therefore, if it should ever come to be a question, as in these pages I have assumed that it may, whether the jurisdiction claimed to be exercised falls within the treaty grant, not only must the article in the English treaty be looked to, but also all the corresponding articles in the exterritorial treaties with the other Powers. This was done in the judgment of the Japanese GovernPrivy Council in Imperial Japanese Government v. P. & O. Co. 1895, A.C. 644. The following article (liv) from the Tientsin treaty, 1858, is the common form in which such articles are drafted:

ment v. P.&O. Co.

clause.

"It is hereby expressly stipulated that the British Govern- Form of the ment and its subjects will be allowed free and equal participation in all privileges, immunities, and advantages, that may have been, or may be hereafter, granted by His Majesty the Emperor of China to the Government or subjects of any other nation."

As treaties with oriental States are entered into by other Its beneficial operation. Powers at different times, it may well be that in the later ones

Persia.

difficulties are removed which have arisen in the construction of the earlier ones, the benefit conferred on the one Power being automatically conferred on all the others which have existing treaties at the time. It may be unnecessary, therefore, in all cases to rely on sufferance for the exercise of some power which appears to exceed the actual grant to Great Britain. In applying the principles which I have endeavoured to work out to any given oriental country, all the grants made by that country must therefore be examined. The most-favoured-nation treatment appears to work backwards as well as forwards, and as a general rule, works against the country granting the privilege of exterritoriality. A later grant of jurisdiction, though less in extent than an earlier one, must, if coupled with the mostfavoured-nation treatment, be treated as of the same extent.

In the case of Persia, the King's jurisdiction rests entirely on the most-favoured-nation clauses of the treaty of 1857. None of the usual jurisdiction clauses are included in the treaty: these are to be found in the treaties entered into by the Shah with other Powers. There will also be found in them articles granting reciprocally to Persians in Europe the rights of the most-favourednation. This is, I think, the only example of a reciprocal article in any form in exterritorial treaties.*

Persia has granted exterritorial privileges by treaties with the following Powers:-Austria, Hungary, Belgium, France, Germany, Greece, Italy, Russia, Spain, Switzerland, and the United States; and with Turkey on the basis of reciprocity.†

c.g. "Dans le Royaume d'Italie les sujets Persans seront également dans toutes leurs contestations, soit entre eux, soit avec des sujets Italiens ou étrangers, jugés suivant le mode adopté dans ce Royaume envers les sujets de la nation la plus favorisée.

"Quant aux affaires de la jurisdiction criminelle, dans les quelles seraient compromis des sujets Italiens en Perse, des sujets Persans en Italie, elles seront jugées en Italie et en Perse suivant le mode adopté dans les deux pays envers les sujets de la nation la plus favorisée."-Treaty between Persia and Italy, 24th September, 1863, art. v.

All these treaties will be found set out in full in Sir Edward Hertslet's "Persian Treaties," published in 1891.