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Fundamental

rules governing the subject.

whether of Parliament or of the Courts, are as applicable to oriental, or so-called barbarous countries, and to British subjects resident or being therein, as to civilised States.

This branches out into the following minor propositions which express the same idea in different ways:—

The British Sovereign has no inherent rights in an oriental country, or over his subjects there. Such subjects are beyond the ligeance of the British Crown, and are therefore not specially subject to the Crown, the Parliament, or the Courts, by reason of their residence or presence in these countries. They are, however, subject to those authorities in precisely the same way, to the same extent, and for the same reason, as they are subject to them when they are in civilised countries. Such powers as the Crown still wields over its subjects beyond the seas, such authority as Parliament exerts over them, such jurisdiction as the Courts exercise against them, exist and are exercised in these countries as in all others, neither more nor less. "Barbarous country" is a negligeable quantity as a term of law, not connoting any right in any British authority: and, save for the statute which we are about to consider, and one other analogous to it— 38&39 Vict.c. 51. the Pacific Islanders Protection Act, 1875-there is only one old statute still extant which differentiates barbarous from other

57 Geo. III, c. 53. foreign countries, the Murders Abroad Act, 1817.

Recognition of status of oriental Sovereign.

Countries without

"

Again, the sovereignty of the potentates of these oriental States, as well as of barbarous chieftains, is recognized to as full an extent as that of the Sovereigns of what was formerly called "Christendom." The basis of the King's "foreign jurisdiction" is treaty: and although "other lawful means are recognized as a sound foundation for the exercise of the jurisdiction, and indeed have occasionally to justify it, treaty is resorted to wherever possible for its establishment. The due observance of these treaties is as much regarded by the Executive, and, if need be, enforceable by the Courts, as in the case of treaties with civilised Powers. They are concluded by the British Sovereign as with an equal Sovereign Prince. They are so concluded in virtue of the prerogative, and independently of Parliament: hence the term "the King's foreign jurisdiction."

From this it follows that the claim to exercise this jurisdiction regular forms of (under s. 2 of the Act) in countries which were without regular governments at the time when it was asserted, falls to the ground

government.

so soon as the natives establish a regular Government for themselves with which an agreement could be concluded. Such countries are termed in that section "foreign countries not subject to any government from whom His Majesty the King might obtain jurisdiction in the manner provided by this Act."

Theoretically, it also falls to the ground when a valid and effectual full claim in sovereignty is made by another Power to the territory, in accordance with the usages of international law. In practice, however, it is probable that certain formalities would be gone through in both cases, in order to put the abandonment in due form.

For reasons which will be explained in due course, the exercise Extent of the of this jurisdiction, as distinguished from its acquisition, does not prerogative. fall within the prerogative, and it has been found necessary to cf. Section II. regulate its exercise by Act of Parliament. This Act has autho

rised the promulgation of legislation, the creation of offices, and the establishment of Courts in these countries.

Further, although it is usual to speak of the jurisdiction as exerciseable over British subjects, there is nothing in the prerogative which could prevent the acquisition of this jurisdiction over natives of the country, or over foreigners resident there: nor, indeed, is there anything in the Act which is inconsistent with its exercise in such cases. The question how far foreigners may be cf. Section X. affected by, or included in, the jurisdiction will be dealt with fully in due course.

From these elemental propositions there emerges one which is Rights exercised belong to the cardinal to the complete understanding of the subject. The oriental rights which the King exercises in these countries are not his Sovereign. sovereign rights at all, but are merely the delegated rights of the Sovereign of the country: the Courts which are created are not the King's Courts properly so called, but form part of the judicial system of the country in which they are established. This point, which seemed when it was first written to be purely theoretical, has since received full recognition by the Judicial Committee: first, in Imperial Japanese Government v. P. & O. Co., and after- Japanese Govmt. wards in Secretary of State for Foreign Affairs v. Charlesworth, 1895, A.C. 644. Pilling & Co., in which case it became necessary to go to the Sec. of State v. Charlesworth, root of the matter in connexion with exterritoriality in Zanzibar. 1901, A.C. 373: In the judgment Lord Hobhouse said, "The root of the jurisdiction at p. 385. is the treaty grant or other matter by which the Queen has

v. P. & O. Co.

Haggard v.
Pelcier,

1892, A.C. 61.

power and jurisdiction in Zanzibar. She thereby becomes an authority in the foreign country of Zanzibar, though exercising her powers quite independently of the will of the Sultan. . . But throughout the matter Zanzibar remains foreign territory, and the Queen and her officers are acting as Zanzibar authorities by virtue of the power she has acquired, and which is within its limits a Sovereign Power. It results that a Judge acting within those limits is a Zanzibar Judge, and is bound to take judicial notice of the Zanzibar law, whatever it may be, applicable to the case before him."

The meaning of this must not, however, be misunderstood. The relation of the Consular Court and the Judge to the Sovereign of the oriental country cannot divest that Judge of the privileges which the law of England gives to Judges appointed by the King; and therefore, "whilst sitting and acting as Judge of the Consular Court, he is entitled to the same degree of protection which is accorded by the law of England to the Judge of a Court of Record." (Haggard v. Pélicier Frères.)

The judgment in the Zanzibar case cited above, presses the theory home to its logical conclusion, and will again be referred to when we come to consider the subject more in detail. For the present it is quoted to show the full extent of the theory of the subject. The importance of this theory is perhaps best illustrated by referring to a curious point of practice in the administration of the Use of "the peace criminal law. In the indictments used in the Consular Courts, of the King" in offences were formerly described as being "against the peace of in) our Lord the King his peace and dignity.'

indictments.

R. v. Sawyer,
Russ. and Ryan,

294.

Now, I believe (certainly in the "Charges," according to the form given in the China Rules), the offence is charged as being against the article of the Order in Council applicable to the case.*

* Precisely the same question arises with respect to a murder by an Englishman in a foreign country.

In the case of R. v. Sawyer it was held that the indictment need not conclude contra formam statuti; but the indictment was under the 33 Hen. VIII. c. 23, which did not create the authority to try a person for murder committed out of England, but introduced a reform in procedure. Contra pacem imported protection of the subject: under the old law it was absolutely necessary to show that the person killed abroad was a subject of the Sovereign; and hence a species of extra-territorial protection. But now that the statute (9 Geo. IV. c. 31, s. 7, as interpreted by R. v. Azzopardi, and afterMoody C. C. 238. wards expressly by 24 & 25 Vict. c. 100, s 9), has made the murder by British subjects of foreigners abroad triable in England, it seems obvious that the crime is against the form of the statute, and not contra pacem.

R. v Azzopardi,

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countries.

But it is not unimportant to realise at the outset why the old form was wrong. The "peace" broken by an assault or any crime, cannot be other than the peace of the Sovereign of the country in which it occurs. "Such offences are in truth offences against the people and Sovereign of the country in which they are com- Japanese Gormt. v. P.&O.Co., 1895, mitted": (see Imperial Japanese Government v. P. & O. Co.). A.C. at p. 657. The fact that the power of punishing the offender is granted to his own Sovereign, even though the criminality of the offence be judged, and the punishment be determined, by a law which is not the national law, does not alter the main principle. King's protection of his subjects It is not as though the British community were put under does not extend the protection of their Sovereign, so that the peace of the to oriental community might in some measure be regarded as part of the larger peace of Great Britain. For in any crime the public peace is broken because of the offence to one whom the Government of the country protects. Whereas in the criminal jurisdiction under a system of exterritoriality, the person injured is not taken into account; the nationality of the offender is the sole criterion of the Court and law by which the nature of his offence will be tried. If it were true to say that the King's peace is broken by any crime which an Englishman commits when Englishmen in a foreign country are put under his jurisdiction, it would also be true to say that the Emperor's peace is broken when a German commits a crime, the peace of the Republic when a Frenchman commits a crime, in a country in which Germans and Frenchmen are under the jurisdiction of their own laws.

The result of the treaty is that Englishmen in oriental countries are put under the jurisdiction of the King, and it matters not who is the victim of the crime: he may be a Russian, a Spaniard, an American, or a subject of the oriental country itself. There is no question of protection of the subject, only of punishment of the subject. Obedience to the law of England is required, not because that law has any inherent extra-territorial force, nor because of any allegiance due to the King, such protection as exists being neither correlative nor co-extensive with the area of the duties: but because the Sovereign of the country has expressly placed English subjects under the jurisdiction of the English King, his jurisdiction being as defined in the treaty.

Strictly speaking, then, both the protection of, and the right to

1

Powers remaining in oriental Sovereign.

Carr v. Fracis,
Times, 1902,
A.C., 176.

Note on the

Muscat case see
also pp. 13, et
seq.

exact obedience to the law from, foreigners in an oriental State, reside in the Sovereign of that State. If they are injured by natives, redress must be sought from, and punishment awarded by, the tribunals of that State. If they are injured by other foreigners or by their own countrymen, redress must be sought from, and punishment awarded by, tribunals which are indeed not those of that State, but which owe their existence to the express permission of its Sovereign.

The law to which obedience is required may be that of the foreigner's country, but this solely in virtue of the law of the oriental country whose Sovereign has sanctioned its operation therein.

There is, however, one side of the question which is not infrequently lost sight of the extent of unsurrendered power which remains in the oriental Sovereign: the fact that in spite of the privilege of exterritoriality, there may be some laws to which that Sovereign may require obedience even from foreigners. An example of this may be found in the case of Carr v. Fracis, Times & Co., where the seizure of a British ship in the territorial waters of Muscat, under the authority of a proclamation issued by the Sultan, was held to have been justified.

The exact position involved in exterritoriality may be shortly stated thus:-Such powers alone as are surrendered by the Sovereign of the oriental country can be exercised by the Sovereign of the Treaty Power. * All those powers which are not surrendered are retained; and to the exercise of such powers by the Sovereign of the oriental country, the subjects of the Treaty Powers are bound to submit.

The question involved in the acquisition of foreign jurisdiction by usage or sufferance will be considered later.

NOTE. I must confess to having some difficulty in understanding the case of Carr v. Fracis, Times & Co., as it is reported. Muscat is a country in which the King exercises foreign jurisdiction, British subjects being governed by the Muscat Order in Council, 1867. But the fact of exterritoriality existing there does not seem to have been

*The term "Treaty Power" is in common use in the East, and it seems convenient to use it to indicate a State whose Sovereign has acquired exterritorial rights in another country. The term "Sovereign State" indicates the State whose Sovereign has granted the rights. I have, however, frequently used the expression "Oriental Country” in the text, instead of the cumbrous sentence "country which has granted exterritorial privileges."

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