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The arrest was held to be illegal, the following propositions being laid down by Lord Halsbury.
The railway lands are still part of the Nizam's dominions, and the authority to execute criminal process must be derived from the Nizam. The notification in the Gazette was not the source of authority; the source of authority was to be derived solely from the sovereign power of the Nizam-and, as a stream can rise no higher than its source, the notification could not give more extended powers than the Nizam had granted. The correspondence shewed that the Nizam had refused any cession of territory, but had only granted the right to exercise criminal and civil jurisdiction along the line of railway, as in the case of other lines running through independent States. The offence with which the appellant was charged was not committed on the railway, nor was it connected in any way with the administration of the railway. It was committed in another part of India, and the fact that the offender was physically on the railway land did not lay hini open to criminal procedure for an offence committed elsewhere.
This decision applies to a case of foreign jurisdiction in little the principles of the general law on the subject which the Judicial Committee have laid down in the recent cases referred to in this book. It is worthy of note that the District Magistrate, when issuing the warrant, had suggested that it might possibly be a case for extradition. It is abundantly clear that if extradition had been resorted to, the application would of necessity have been made to the Haidarabad Government, and that the offender could not have been handed over by the British authorities, in virtue of the jurisdiction exerciseable by them in the railway lands.
THE SUBJECT of Exterritoriality was described by Sir Fitz James Stephen as “of great curiosity, but very little known.” The learned author referred, of course, to the legal aspect of the subject, for, in practice, it has been familiar to officials and merchants since the date of the “Capitulations”, agreed to by Turkey in 1675.
Fifteen years ago, when the first edition of this book appeared, the attention of a wider circle of observers was being more and more directed to the subject in all its aspects, commercial, legal, and social, by the great strides in intercourse with Western Nations which were being made by one of the countries in which other Sovereign States are permitted to exercise jurisdiction over their own subjects and citizens. That country is now a Great Power. But I think I am justified in saying that the attention to the details of Consular Jurisdiction which the progress of Japan compelled, has led to the improvement in the system by which it is worked in many directions. Orders in Council are seldom looked at, little read : the care which is involved in their elaboration is hardly appreciated. Unlike statutes, they are not often subjected to criticism, for editors and lawyers rarely have them in their hands. Yet the progress which has been made during the last ten years in reducing chaos to order is surprising. Method has taken the place of the old hap-hazard treatment, and an effort to attain a uniformity, both of system and of style, is everywhere noticeable. Not the least important step has been the collection into one volume of the “Statutory Rules and Orders (Revised)” of all the Foreign Jurisdiction Orders in Council.
Another thing too has made for progress in what I may call the science of the subject.
The legal principles involved do not often come before the Courts, but during the last few years some cases have been decided which have done much to settle the foundations of the subject.
The settlement has been on the lines suggested in the first edition; in this edition, therefore, it will be possible to start from a new standpoint, and much of the argument and elaboration necessary to establish those lines may now be curtailed, and be treated with greater freedom.
Another point personal to myself has also tended to make the preliminary matters formerly discussed in the book easier to deal with. These relate to Allegiance and Extra-territorial Jurisdiction,
which have been fully discussed in another work which has " Nationality," recently appeared. † Although they lie at the foundation of Vols. I and II.
Exterritoriality, it will not now be necessary to do more than allude to the conclusions arrived at in that book. I propose in this edition to treat the question as an offshoot of the wide subject of “Nationality,” making it follow that subject in natural sequence.
While, however, the theoretical consideration of the question has been considerably reduced, I have endeavoured to elaborate it in its practical side: and in doing this, I have devoted a much larger space to the examination of the English law and statutes which have been applied to countries subject to the King's foreign jurisdiction, indicating, with as much precision as possible, the results of that application.
The system which the claim and grant of foreign jurisdiction has called into being is artificial in the extreme. It recognizes the existence of two separate communities in the same country. Where one is savage and the other is civilised, the points of disturbance are few. But where the foreign community is a large one carrying on a prosperous trade, and where the native community is also prosperous and busy, has its own laws, police, Courts, and the whole system of executive government, the points of disturbance are many, deepening in interest with every recurrence of them. The words “exterritoriality” and “extra-territoriality” are
” treated by some writers as identical ; by others as indicating, the first, ihe privilege of ambassadors and their suites; the second, the treaty privilege under which consular jurisdiction has been established in the East.
Both these privileges are, however, more correctly described as "exterritorial”; the condition of those to whom they are accorded as “exterritoriality.”
The position of an ambassador with reference to the jurisdiction of the country to whose Sovereign he is accredited is, in theory, precisely identical with that of a person who is withdrawn from the jurisdiction of the country in which he resides. The two privileges rest on different grounds; the one is granted by courtesy,* the other by treaty. They differ in degree; the one being almost complete and uniform, while the other is partial and varies in different Oriental States. They differ too in the resulting relations to the home Government, and the manner in which laws may be passed affecting those who enjoy the privileges. But they have this fundamental fact in common; the ordinary consequences of residence in a foreign country do not attach, jurisdiction being waived, in greater or less degree, by the Sovereign Authority of that country.
On the other hand, the government of these privileged persons by their own authorities from home is "extra-territorial.”
“Extra-territoriality” as a term conveys no definite meaning, for there is no state to which it is properly applicable. All British subjects beyond the realm are subject to the extraterritorial laws of the kingdom which are of general application, and those who are specially indicated in them to such laws as are of special application. But the intricate questions which arise in connexion with them do not concern the subject with which we have now to deal.
I The General Theory of Exterritoriality. EXTERRITORIALITY in its practical, and also partly in its theoretical aspect, is governed by the provisions of the Foreign Jurisdiction Act, 1890. But there are some cardinal principles on which the subject rests which require to be first established, before we can be in a position to consider its many details.
The first of these principles is that all the fundamental rules of law which are bottomed in allegiance and in jurisdiction,
* In England by statute :-7 Anne, c. 12.