formula "questions in regard to rights whether of property or person arising between British subjects", in clause iv, must be held to include criminal jurisdiction in the same matters; or British subjects must be included in the sentence in clause v, "any crime against Japanese subjects, or the subjects or citizens of any other country." Although the first interpretation is possible, and warranted in virtue of the principle now being considered, it is not strictly accurate under a system of criminal procedure in which the proceedings are intituled "the King, on the prosecution of A. B. against X. Y." In the treaty with China the words “British subjects who commit any crime in China" are used to create the criminal jurisdiction. This principle of interpretation may be further illustrated by the case of Hart v. Gumpach, which was an action for libel. It was Hart v. Gumpach, L.R. 4 P.C. 439. assumed all through the case that the right of reputation which is involved in such an action, was not excluded from the jurisdiction of the Consular Court of China by the words "all questions in regard to rights, whether of person or property", in the clause cited above, which also appears in the treaty with China. So, in the case of the Imperial Japanese Government v. P. & O. Co., it was contended that as the treaty only referred to suits in which Japanese subjects were plaintiffs, a suit by the Japanese Government, or by the Emperor of Japan under that name, did not fall within the treaty. The Judicial Committee declined to accept this view, more especially as the result would have been to render British subjects, defendants in such suits, amenable to the local Courts. Japanese Govmt. v. P. & O. Co., 1895, A.C. 644. The Exercise of the Judicial Power as it WE HAVE hitherto considered the King's foreign jurisdiction The fact with which exterritoriality deals is the presence of wes- f judgment in the Indian Chief, tern merchants in an oriental country, where, "from the oldest times, 3 Rob. Adm. at an immiscible character has been kept up": where "foreigners are P. 29. cf. p. 10. not admitted into the general body and mass of the society of the nation:" where the laws, inapt to accommodate themselves to western ideas, have no standards appropriate to the settlement of disputes among the merchants. The method by which the system deals with the problem is to remove the merchants, their disputes and offences, from the operation of those laws, placing them under the jurisdiction of their own authorities. But the very simplicity of the remedy has entailed difficulties peculiar to it. For when one nation steps into the markets of the East, others are bound to follow, claiming the same privileges and exemptions from the operation of the native laws. So, where there is one exterritorial treaty there are generally several, the rights accorded to one Power being granted to the others, and, as we have seen, the whole being assimilated by the mostfavoured-nation treatment. But this creates a series of independent communities, each governed by its own laws, the whole The system treats without coherence. The system deals only with the elements of which the "foreign community" is composed, not regarding it nities as indepen- as a unity, nor providing means for settling the disputes which the different foreign commu dent. must arise between the members of the different national communities. In a country such as Egypt, where the interests are of great importance, the remedy for this state of affairs has been found in the establishment of Mixed Courts: but this is the only attempt which has been made to arrive at combined action between the different Treaty Powers. To a certain extent the close proximity of a Colony to a Treaty Port, as of Hong Kong to Canton, eases the strain: for the jurisdiction of English Courts is built on so broad a foundation, that cases which would otherwise be heard by the Consular Court are often tried in the Courts of the Colony. But obviously this is an insufficient substitute for the general principle which is lacking in some treaties. In others, the question is partially dealt with. Thus in the Corean treaty the British judicial authorities are vested with jurisdiction to "hear and determine all cases brought against British subjects by any British or other foreign subject or citizen": and the same right is accorded to the other Powers who have entered into treaties with the once-called Hermit Kingdom. This provision links the foreign communities in Corea into one for cases which fall within the normal jurisdiction of Courts of Law: that is to say, so far as suits by foreigners against defendants in their national Consular Courts are concerned. But this only deals with one branch of the question. Chinese treaties. In the Treaty of Tientsin the subject is not dealt with: but in Provision in the the Chinese treaties with France, Germany, Austro-Hungary, and the United States, there is a negative provision to the effect that the Chinese authorities shall not in any manner interfere in any dispute between the subjects or citizens of those countries respectively and other foreigners. The most favoured-nation clause makes the article in the Chinese treaties with these Powers appli- cf. p. 45. cable to Great Britain. This may, therefore, be treated as equivalent to the positive provision of the treaty with Corea. Putting on one side, however, the express provisions of the Position of treaties which may deal with the question, it is essential to con- foreigners in the absence of provisider the position of foreigners in the abstract, from the point of sion in the treaty. view of a treaty which contains no such provision. And, moreover, these express provisions do not deal with jurisdiction exercised over foreigners as defendants in actions brought against them in the British Consular Courts by British subjects, which is sanctioned by the Order in Council; nor, conversely, with actions brought against British subjects in the Consular Courts of other countries. The possibility of such jurisdiction being exercised must now be considered. It is necessary, however, in the first place to determine who Who are come within the definition of "foreigners": where the line is to who "natives." "foreigners," and be drawn between "natives" of the oriental country and foreigners, for a similar question arises in connexion with "natives," that is, subjects of the oriental country. It may seem almost superfluous to say that "foreigner," for the purposes of this discussion, means the subject of a Treaty Power: and that all others, whatever their nationality, must be included in the term "native"; for being without the protection of an exterritorial treaty, they must be subject to the native laws and tribunals. China Order, The definition of "foreigner" in the China Order includes "a Definition of subject or citizen of a State in amity with His Majesty, including "foreigner": China and Corea," no distinction between foreigners and natives art. 3. being made. But the distinction, as we shall presently see, is an important one, and it would seem to have been through oversight that it has not been recognised in art. 151. It follows, from what has been said on the general theory of the subject, that among the fundamental principles which are as of. Section I. Subjects of nontreaty Power have no privileges. of Nationality," applicable to Eastern as to Western States is the one for which we Vol. I, Chap. XII. have invented the inappropriate name "Temporary Allegiance." The privilege of exterritoriality withdraws the subjects of the State to which it has been accorded from that psendo-allegiance; that is, exempts them from obedience to the laws of the oriental State in which they reside. But failing a grant of such privilege those laws prevail; and a subject of a State which has not entered into an exterritorial treaty is bound by those laws so long as he remains within the sphere of their operation. In the early days of our intercourse with oriental, and even some other, nations, the difficulties of the situation as it then existed were partly overcome by what was known as the factory system, and it is necessary both to understand its scope and to realise that it has now disappeared. Protection of foreigners result system. The law applicable to that system was explained in the judgthe Indian Chief, ment in the Indian Chief:-"It is to be remembered, that 3 Rob. Adm. 12. wherever even a mere factory is founded in the eastern parts of the world, European persons trading under the shelter and protection of those establishments are conceived to take their national character from that association under which they live and carry on their commerce. It is a rule of the law of nations, applying ing from factory peculiarly to those countries. . . In China, and I may say generally throughout the East, persons admitted into a factory, are not known in their own peculiar national character: and being not admitted to assume the character of the country, they are considered only in the character of that association or factory." Having referred to two other examples of the application of the principle, Sir W. Scott continued, "I remember perfectly well, in the later case of Mr. Constant de Rubecque, it was the opinion of the Lords, that although he was a Swiss by birth, and no Frenchman, yet if he had continued to trade in the French factory in China, which he had fortunately quitted before the time of capture, he would have been liable to be considered as a Frenchman." The "Factory" was an establishment tolerated by the State in which it was set up, which, apparently for the convenience of all parties, was withdrawn, as well as all persons therein residing, from the operation of the local laws. Such an establishment existed, I believe, even in St. Petersburg. Though not from all laws: see p. 8. common. But it is obvious that so soon as exterritorial treaties became Factory system disappeared when common, or rather should it be said, so soon as it was discovered exterritorial that the nations of the East were found to be not unwilling to treaties became grant the privilege of exterritoriality, and to grant it moreover on the footing of the most-favoured-nation, the reason for the factory rule which the law of nations had invented ceased to exist. And, therefore, if any nation refrained from acquiring the rights which the oriental countries were willing to give, they fell into the opposite category of the least-favoured-nation, and their subjects could no longer expect the protection which the artificial factory system. had invented in their favour. That system may be described as the thin edge of the wedge which the oriental nations have now permitted to be driven home. From a practical point of view moreover, no difficulty presents itself: for, as we have seen in the case of Persia, the privileges of of p. 46. British subjects in that country depend entirely on a short clause guaranteeing the most-favoured-nation treatment. As we shall presently see, there is nothing to prevent the jurisdiction granted to one country from being extended to the nationals of another, all the countries interested agreeing. By means of such an agreement, therefore, a State with very few nationals residing in the oriental country, may still secure for them the benefits of exterritoriality, without going to the expense of maintaining a diplomatic representative in the country. tion over These preliminary points disposed of, we may proceed to consider the question-In what circumstances, in the absence Questions inof any treaty provision, can the British Consular Courts exercise volved in jurisdiccivil jurisdiction over or in respect of foreigners? Can it be foreigners. assumed? Can it be sanctioned by the Sovereigns interested? Can it be acquiesced in by the subjects irrespective of their Sovereigns? Now it is obvious that underlying the questions as thus stated is that question which is fundamental to the whole subject: that The question of If it foreign jurisdiction depends in no wise upon allegiance. allegiance. cf. Section I. were true that British subjects in China, for example, owe allegiance to the King: may be legislated for by the Parliament at Westminster: may have sentence passed on them by the British Consul at Canton, for example, quite independently of the terms of the treaty between Great Britain and China, then the same positions are true of Italian subjects in China with regard to their King and Parliament, of German subjects, and of all other |