The question involved in this section is one which, theoretically, Protection of is of importance in all cases; but it is of special and practical Princes. subjects of Indian importance in the case of those oriental countries which are frequented by natives of India. The origin of the section, in so far as it relates to the "subjects of the several Princes and States in India," is to be found in the statute 39 & 40 Vict. c. 46, which was passed "for more effec- “ Slave Trade Act, tually punishing offences against the laws relating to the slave 1876." trade", committed by both British subjects and subjects of the native Indian States in Zanzibar and Muscat. Having this object in view, it seems to have been thought advisable to settle any doubts which might exist as to whether the subjects of the Indian protected States were entitled to the privileges of exterritoriality in those countries. The occasion was then taken to declare that they were entitled generally to be considered as under the protection of the British Crown, and therefore were to be deemed to be within the meaning of "protected persons" in all foreign jurisdiction Orders in Council. The declaration is contained in the third recital of the preamble which is as follows: And whereas the several Princes and States in India in alliance with Her Majesty have no connexions, engagements, or communications with Foreign Powers, and the subjects of such Princes and States are, when residing or being in the places hereinafter referred to, entitled to the protection of the British Government, and receive such protection equally with the subjects of Her Majesty— It was then provided by s. 4, that the Orders in Council for Zanzibar of 1866, and Muscat of 1867, should "extend and apply to all British subjects whether by birth or by naturalization, and also to all persons enjoying Her Majesty's protection" in those dominions: and that for the purposes of those Orders, and of any Declaration in others made under the Foreign Jurisdiction Act, 1843, "all sub- Act of 1876 that subjects of native jects of the several Princes and States in India in alliance with Indian Princes, Her Majesty, residing and being in the several dominions com- being entitled to prised in such Orders respectively, are and shall be deemed to be within the exterritorial privilege. persons enjoying Her Majesty's protection therein”. By s. 6, save as aforesaid, nothing in the Act was to affect any Orders made under the Foreign Jurisdiction Act of 1843. In Orders issued after 1876, there was usually introduced into the definition of "British subject" a reference to the above Act. protection, are Definitions of "British subjects". which include protected persons Sections 4 and 6 were repealed by the Foreign Jurisdiction Act, 1890, and were replaced by s. 15. The definitions of "British subjects" in the Orders subsequently issued, contain a corresponding reference to this section.* *The following are the references to, and definitions of, 'British subjects," in the Foreign Jurisdiction Orders in Council. in the Orders in Muscat, 1867. Council. The Order extends to all British subjects, whether by birth or naturalization, and also to all persons enjoying Her Majesty's protection in the dominions of the Sultan of Muscat. Morocco, 1889. The Order extends to all persons within the limits of the Order who are British subjects by birth or naturalization, or are otherwise for the time being subject to British law: and to persons properly enjoying Her Majesty's protection in Morocco, including all subjects of the Indian Princes (by virtue of 39 & 40 Vict. c. 46) residing or being in Morocco. Persia, 1889. "British subject" includes a person enjoying Her Majesty's protection in so far as Her Majesty has jurisdiction in respect of such person, and includes all subjects of the Indian Princes (by virtue of 39 & 40 Vict. c. 46) residing or being in Persia. Persian Coast and Islands, 1889. The Order extends to British subjects by birth or naturalization, and to persons enjoying Her Majesty's protection, including all subjects of the Indian Princes (by virtue of 39 & 40 Vict. c. 46), residing or being within the Persian Coast and Islands. Zanzibar, 1897. "British subject" includes a British protected person, that is to say, a person (a) who being a native of any place beyond the dominions of the Sultan of Zanzibar, which is under the Protectorate of Her Majesty is temporarily within the limits of the Order: or (b) who by virtue of the Foreign Jurisdiction Act, 1890, or otherwise, enjoys Her Majesty's protection in Zanzibar. Turkey, 1899. "British subject" includes a British-protected person, that is to say, a person who either (a) is a native of any Protectorate of Her Majesty, and is for the time being in the Ottoman dominions: or (b) by virtue of s. 15 of the Foreign Jurisdiction Act, 1890, or otherwise, enjoys Her Majesty's protection in the Ottoman dominions. Siam, 1903. The same as Turkey, mutatis mutandis. China and Corea, 1904. The same as Turkey, mutatis mutandis. But s. 15 is based on the general principle that persons enjoying Sec. 15 extends to British protection are included in the benefits of exterritoriality; ing British all persons enjoyand it is necessary, therefore, to enquire how far this accords with protection. the general theory of foreign jurisdiction: for the treaties, except occasionally in the case of natives of the country with which the treaties are made who are in British service, accord the privileges only to British subjects, and persons who are under the protection of the King are not subjects. subjects included c. 14. The definitions of British subjects in the Orders in Council Naturalized [see note on p. 68] also refer to subjects by naturalization, and as in privilege of to this one point at least is clear. If by the law of England exterritoriality. aliens are made British subjects by naturalization, then they must be included in this term when used in the treaties: for the oriental State must be assumed to agree to the use of terms in the treaty on the footing of English law, in so far as persons subject to that law are concerned. I state the case of naturalized persons in this guarded language on account of the well-known difficulty of interpreting the Naturalization Act, 1870, 33 & 34 Vicl. which I have dealt with in another work. It is sufficient to say of."Nationality,'' here, that there is still an uncertainty as to whether the effect of Vol. I, the certificate of naturalization is not limited to the United Kingdom; and if it were eventually to be held that persons naturalized ceased to be British subjects when out of the United Kingdom, the same doubt which arises as to protected persons would also arise as to them. I believe that the certificate has not so limited an effect; and I think, therefore, that no difficulty in connexion with foreign jurisdiction could arise with regard to persons who have become British subjects by naturalization in the United Kingdom. Chap. VIII. colonies are not But with regard to aliens naturalized in the colonies, But persons there is no uncertainty as the law now stands. They have naturalized in the the privileges of British subjects only within the colony in so entitled. which they are naturalized. It could not, therefore, be contended of." Nationality." that they come within the definition of "British subject" in the Vol. I, Chap. XV. Orders in Council: for, on the hypothesis, the jurisdiction is only exerciseable in places which are not colonies. It is unnecessary to go deeper into the complex questions, such as "double nationality," and "no nationality," which arise under the existing Naturalization Act: the joint application of the principles of nationality and of exterritoriality can easily be worked out as occasion arises. Subjects of native Indian States entitled to the privilege. The case of natives of Protectorates doubtful. Referrences to "Protected Persons" in the treaties. Reverting now to protected persons, it seems fairly clear that the principle which, as I think, supports the inclusion of naturalized subjects within the benefits of exterritoriality, applies equally to the subjects of the native Indian Princes; for the recital of the statute above referred to, declares them to be entitled to the King's protection, and it may be assumed as before that the oriental State would conclude the treaty with knowledge of this fact, its attention being in all probability called to it. But when we come to natives of other British Protectorates, the point, in the absence of such an implied assent, is far from clear. It will be seen that the later Orders in Council expressly refer to these persons as coming within the definition of "British subject" but that the treaties, except perhaps that with Persia, refer only to another class of protected persons-natives of the State with which the treaty is entered into who are in the service of British subjects.* In the absence of any stipulation or The following are the references to "Protected Persons" in the Foreign Jurisdiction treaties. Morocco-Treaty, 1856. VII. No subject of the Queen of Great Britain, nor any person under her protection, shall, in the dominions of the Sultan of Morocco, be made liable to pay a debt due from another person of his nation, unless he shall have made himself responsible or guarantee for the debtor, by a document under his own handwriting. Zanzibar-Treaty, 1886. XVII. Subjects of His Highness the Sultan or any non-Christian nation not represented by Consuls at Zanzibar, who are in the regular service of British subjects, within the dominions of His Highness the Sultan of Zanzibar, shall enjoy the same protection as British subjects themselves. Muscat-Convention, 1839. IV. Subjects of the dominions of His Highness the Sultan of Muscat, actually in the service of British subjects in those dominions, shall enjoy the same protection which is granted to British subjects themselves: but if such subjects of the dominions of His Highness the Sultan of Muscat shall be convicted of any crime or infraction of the law requiring punishment, they shall be discharged by the British subject in whose service they may be, and shall be delivered over to the authorities of His Highness the Sultan of Muscat. understanding outside the treaty, as to the existence of which the Were it not for the inclusion of natives of the Indian States Protection of native servants. both in the section and in the definitions of the Orders in Council, it would seem as if the protected persons intended to be included in the jurisdiction were limited to natives in the service of British subjects. This would seem to be the true meaning of the expression used in the older Orders such as that with Muscat: "The Order extends . . . to all persons enjoying His Majesty's protection in the dominions of the Sultan of Muscat" Persia-Treaty, 1857. sons" in the treaties. XII.-Saving the provisions in the latter part of the preceding article †, References to the British Government will renounce the right of protecting hereafter "Protected Perany Persian subject not actually in the employment of the British missions, or of British Consuls General, Consuls, Vice Consuls, or Consular Agents, provided that no such right is accorded to, or exercised by, any other foreign Power: but in this, as in all other respects, the British Government requires, and the Persian Government engages, that the same privileges and immunities shall in Persia be conferred upon, and shall be enjoyed by the British Government, its servants and subjects, and that the same respect and consideration shall be shewn for them, and shall be enjoyed by them, as are conferred upon and enjoyed by, and shewn to, the most favoured Government, its servants and subjects. This refers to certain claims against the Persian Government by Persian and other foreign subjects under British protection, which were to be adjudicated upon after the return of the British Mission to Tehran. |