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comes uppermost-If there are local bounds, what is the true limit to extra-territorial legislation?
I have dealt with the subject of extra-territorial laws so fully in another work, that I have here omitted most of the Note which was originally written to this Section. It will be useful, however, for the sake of clearness, to link the two discussions together.
In the 2nd. Volume of "Nationality", I was concerned chiefly with the question whether Parliament could legislate for foreigners abroad. The difficulty of the matter arose from the fact that the tendency of some learned Judges seemed to be to insist upon a rule of construction, the effect of which is to push the fundamental question into the background. The effect of that rule cannot be stated otherwise than as follows:-Words, however plain, must be bent of Nationality," to mean what they apparently do not mean, and what Parliament Vol. II, Chap. III. has said be construed by the light of what Parliament may say. But even Cotton L. J., who was the chief exponent of the doctrine, recognised the existence of a limit to parliamentary omnipotence: one of his propositions being that Parliament has no right to legislate in respect of foreigners who are beyond the limits of the Empire.
But the question under discussion in my book on "Nationality" does not exhaust the subject, for we find it arising here in another form: a form moreover which does not admit of a solution by the aid of a convenient rule of construction. Such a solution might be useful in a case where the language of the statute under discussion was doubtful, and not on the face of it inconsistent with the treaty. But in the present subject we are compelled to consider the broad question-Supposing that a statute, either by its own direct provisions, or by the principles it lays down on which Orders in Council may be issued, exceeds the treaty, are the Courts justified in ignoring it, and restricting its operation strictly to the limits created by the treaty? I believe the answer can only be that given in the text.
The subject of extra-territorial legislation, discussed briefly in the foregoing Note, has an important bearing on consular jurisdiction, owing to the fact mentioned at the commencement of this Section, that there are executive officers in the country by means of whom such legislation could, if it were necessary, and the law valid, be carried out. Its validity is, therefore, a question of great moment.
There are three forms of extra-territorial legislation in respect of which the question of its validity might arise:
(a.) Direct legislation applicable to British subjects in oriental countries, which, by ignoring the King's right to legislate by Order in Council may be termed "unconstitutional."
(b.) Direct legislation which exceeds the limits of the treaty, and which is not to be justified as jurisdiction acquired by "sufferance or other lawful means."
cf. p. 27.
the Le Louis,
(c.) Direct legislation of a similar nature, which imposes a duty of carrying out its provisions on the executive officers in the oriental country.
The last two cases fall within the meaning of "unconstitutional" as used in the first case: but they contain features special to themselves which require consideration.
The second case brings us round once more to the principle which is fundamental to the whole matter-The basis of foreign jurisdiction is not the right of Parliament "to legislate for British subjects anywhere". For if it were, the treaty would drop out of consideration altogether.
If the second form of legislation is bad, a fortiori the third form is bad also. It is bad also as being beyond the power of Parliament on another ground. There can be little doubt that the validity of extra-territorial legislation for which some Judges have contended, and which I believe to be sound doctrine, is limited to such laws as are of imperfect sanction, not being executable unless and until the person who has disobeyed them comes within the jurisdiction. The principle established in the case of the Le Louis, that legislation authorising executive action beyond 2 Dodson, 239. the realm is not within the power of Parliament to pass, and will "Nationality," not be enforced, has, I think, never been contested.† The Vol. II, p. 122. existence of executive officers in the foreign country who can carry out the law cannot remedy its inherent defect. The fact that there is a jurisdiction in the oriental country would not bring such executive action within the doctrine on which the validity of extra-territorial legislation depends, the extreme limit of which § of." Nationality," has been discussed in another work,§ and remove it from the Vol. II, Chaps. III criticism of such laws with which all the decisions abound.
The special questions which arise in connexion with the extraterritorial provisions of the statutes relating to foreign marriages, of Nationality," foreign wills, and foreign oaths and evidence, have also been conVol. II, Chap. VI. sidered in the same work, and need not be further dwelt on here. The question whether the extra-territorial legislation of England is properly applicable to British subjects in an oriental country, either specially or generally, under the Order in Council applying the whole body of English law, seems to depend on other considerations, and will be dealt with in due course.
cf. Section X.
Furisdiction by Sufferance.
IN THE previous Sections exterritoriality has been considered
The Foreign Jurisdiction Act recites that the King has jurisdiction within divers foreign countries by "treaty, capitulation, grant, usage, sufferance, and other lawful means." The first three clearly fall under the general head of "treaty": the last three may conveniently be grouped under the head of "sufferance". Practically there are no other lawful means of acquiring such jurisdiction: for the next step is obviously acquisition of territory, by one of three means-occupation, either by the Sovereign, or by his subjects on his behalf: cession, which includes merger in right of the Crownt: and conquest. So far as tf. "Nationality," I am aware, there is no country in which the exercise of foreign Vol. I, Chap. V. jurisdiction has ever depended entirely on sufferance, but it
seems probable that it enters largely into the creation of Protec
torates, at least in their early history.`
Yet sufferance holds an important place in the general scheme Jurisdiction of foreign jurisdiction. The most cursory glance at the treaties acquired by will show how slight, indeed how incomplete, a foundation the articles of those treaties are for the very extensive structure of jurisdiction which has been raised upon them. Speaking very generally, the consular jurisdiction treaties do not express much more than this-that questions of rights arising between British subjects are to be determined by the British authorities: that British subjects who commit crimes in the country are to be punished by those authorities: that natives who commit crimes.
The Orders in
against British subjects are to be punished by the native tribunals according to native laws: and that grievances by British subjects against natives, and by natives against British subjects, are to be stated to the British Consul, who is to endeavour to arrange them amicably, or failing that, to decide them equitably with the assistance of the native authorities. These are the principal provisions of the Treaty of Tientsin, and the treaties with other States do not differ from them, except in one particular, in any material respect.
The most cursory glance at any of the Orders in Council will face of them, go in its turn show how complete is the jurisdiction which is claimed beyond the treaty. and exercised over British subjects. The Consular Courts are in fact the Courts of England in little, exercising, with some few exceptions, the territorial jurisdiction of those Courts in all its branches-Admiralty, Bankruptcy, Lunacy, in addition to the ordinary civil jurisdiction; and also in respect of some special statutory offences, in addition to the ordinary criminal jurisdiction, such as offences against the Patents and Trade-marks Acts. There is also a contemplated jurisdiction over foreigners resident in the country, exerciseable subject to certain conditions.
cf. Section XI.
A detailed examination of these various jurisdictions will be made in a subsequent Section: for the present it is sufficient to note the want of correlation which is apparent between the rights actually granted and the rights actually exercised. The explanation is that much of the jurisdiction claimed is in excess of the treaty grant, and therefore must depend for its validity on sufferance. Whether it is right that it should be so, or whether it is wrong: how shadowy soever the doctrine may be, the fact remains, and the Courts are bound to deal with it as they find it: and indeed the doctrine has acquired a certain definiteness and precision owing to the way in which it was treated by Dr. Lushington in the case of the Laconia. But before examining that judgment 2 Mo. P.C. (N.S.) it will be advisable, owing to the practical importance of the question, that the legal position which requires to be re-inforced by sufferance should be once more stated.
at p. 181.
Position of sufferance in the
If, under ordinary conditions, it is beyond the power either of legal aspect of the the Sovereign or of Parliament to legalize the commission of any act in any foreign country which is wrongful by the law of that country, or which requires the authority of that law, it must also be beyond the power either of the Sovereign or of Parliament to
legalize its commission in a country where exterritorial privileges have been granted, unless it be in fact one of the privileges. In other words, it is not competent, either for the Sovereign or for Parliament, to tack on to the powers with which the Consular Court and officers are invested in virtue of the treaty, other powers which do not exist in other foreign countries, and are not to be found among the treaty privileges. Such powers must find their justification, not in the mere fact that they are claimed, but in "sufferance" considered as a legal principle.
Dr. Lushington's judgment in the case of Papayanni v. The The Laconia, Russian Steam Navigation Co.-"The Laconia," is as follows:- at p. 131. 2 Mo. P.C. (N.S.) "In considering what power and what jurisdiction was conceded to Great Britain within certain portions of the Turkish dominions, it must always be borne in mind that in almost all transactions, whether political or mercantile, a wide difference subsists in the dealings between an oriental and a Christian State and the intercourse between two Christian nations. This is an undoubt
ed fact. Many of the reasons are obvious, but this is not the occasion for discussing them. It is sufficient for us to know and acknowledge that such is the fact. It is true beyond all doubt that, as a matter of right, no State can claim jurisdiction of any kind within the territorial limits of another independent State. It is also true that between two Christian States all claims for jurisdiction of any kind, or exemption from jurisdiction, must be founded on treaty, or engagements of similar validity. Such indeed were the factory establishments for the benefit of trade. But though, according to the laws and usages of European nations, a cession of jurisdiction to the subjects of one State within the territory of another would require, generally at least, the sanction of a treaty, it may by no means follow that the same strict forms, the same precision of treaty obligations, would be required or found in intercourse with the Ottoman Porte. It is true, as we have said, that if you enquire as to the existence of any particular privileges conceded to one State in the dominions of another, you would, amongst European nations, look to the subsisting treaties; but this mode of incurring obligations, or of investigating what has been conceded, is a matter of custom and not of natural justice. Any mode of proof by which it is shown that a privilege is conceded is, according to the principles of natural justice, sufficient for the purpose. The formality of a treaty is the best proof of