post, p. 183. Area of juris- identical with arises is vested; and according as the subject is plaintiff or defendant, because it follows as a general principle that when actions are submitted to the jurisdiction of the defendant's Court, without more, that Court will administer its own law. From this no general rule of conduct can be inferred. This point, however, must not be misunderstood. The British Consular Court will enforce the same law in any case that the English Courts will enforce. In dealings between subjects and foreigners, English law often requires that the principles of a foreign law should be applied; and the same rule holds good in the Consular Court in cases to which it would be applicable. This point will be considered more fully in a later section. D. Seeing that the Queen's Consular Courts derive their authority from the Sovereign of the country in which they are established, it follows that the territorial area of their jurisdiction area of native must be coincident with the territory which is subject to the Sovereign's jurisdiction. dominion of the Sovereign of the country. On the one hand, it is not less, unless it is expressly so stated; and therefore the jurisdiction extends over the whole country, and is not confined to the Treaty Ports. On the other hand, it does not extend beyond, because the Sovereign of the country could not grant what he does not himself possess. For even supposing that it be admitted that every Sovereign may legislate for his subjects wherever they are, the rule, if it exists, is strictly limited to subjects, and in nowise is admitted to exist in regard to foreigners; and as the only power the Courts possess depends on the Treaty grant, it is not possible to endow them with powers to deal with cases in which acts of British subjects, committed out of the natural limits of their jurisdictions, are called in question, nor to deal with British subjects who are not within those limits. The fact that the Courts in the United Kingdom have such power affords no argument for the existence of a similar power in the Consular Courts. It follows, therefore, that English extra- although the importation of the whole body of English law is a laws probably legitimate consequence of submitting British subjects to the jurisdiction of the British authorities, yet an exception must be made in the case of extra-territorial laws, whether they deal with acts committed abroad, or with persons who are themselves out territorial ecxluded. of the jurisdiction. The effect of the Treaty grant is this: jurisdiction-as defined in the Treaty-is vested in the Queen over such of her subjects as would otherwise be within the jurisdiction of the Sovereign grantor in right of his sovereignty. A fortiori, laws specially passed, or empowering Orders in Council to be made, for the Consular Courts, which have an extra-territorial force, exceed the provisions of the Treaty grant. diction in But apart from the general considerations, the Treaties them- Limit of jurisselves usually furnish a strict limitation to the jurisdiction: the Treaties. civil disputes referred to in them are those which arise within the dominions of the Sovereign grantor; the crimes referred to those which are committed in them. Applying this principle to the general law, there seems no doubt that murders committed by Englishmen abroad, which under the extra-territorial provisions of the law of 1861 are triable in England, cannot be tried in the Consular Courts even though the criminal were resident in the Oriental country. And on the civil side it would equally be impossible to adopt, for the Consular Courts, the English rules of Court relating to service of writs, or notices of writs, out of the jurisdiction.* And further, those special sections of the Foreign Jurisdiction Examination of special Act, which enable the Sovereign by Order in Council to give authorities in extra-territorial jurisdiction to the Consular Courts, are directly Foreign Juriscalled in question by the above proposition. This extra-territorial jurisdiction is of three kinds : The second, to the deportation of offenders for trial or punishment to a neighbouring colony; The third, to fugitive offenders from the Queen's dominions. First, then, with regard to offences committed at sea. They may be divided into two classes: those committed within territorial waters, and those committed on the high seas. diction Act. cf. ante, p. 42. * The inclusion of extra-territorial laws in the body of English law seems to me to be bad for either of the reasons advanced in the text. If this were not so, the result would be curious, for the Consular Courts would have a wider jurisdiction than the Colonial Courts; the only extra-territorial laws cf. ante, p. 48. enforceable therein being such Imperial Acts as are extended to the Colonies. Offences in territorial waters. Jurisdiction coincides with native jurisdiction. Offences on high seas. Necessary limit of grant. The general law as to territorial waters, as deduced from "The Franconia" case (Law Reports, 2 Exchequer Division, p. 63), is that the popular "three-mile limit" does not exist as part of the unwritten law of nations: that it is competent for the Legislatures of different countries to pass a law extending the Sovereign's jurisdiction over such an area of the high seas; but that it is for other countries to recognise such a law or not if they please. The law, as stated by the preamble of the "Territorial Waters Jurisdiction Act, 1878" (preambles, it is true, are not regarded as expositions of the law; but this one was in curious conflict with the decision of the Court of Crown Cases Reserved), was that Her Majesty's rightful jurisdiction extends and has always extended "to such distance as is necessary for the defence and security" of her dominions. And the same of course would be true of other Sovereigns; and their claim would be generally recognised. The bearing of this point on the present subject is this: if the Sovereign of the country in which Consular Courts are established claims jurisdiction over the high seas "to such a distance as is necessary for the defence and security" of his dominions, then the jurisdiction of those Courts over that area is derived from the Sovereign of the country, and rests, as its ordinary jurisdiction does, on the Treaty. But beyond this area, on the high seas, the utmost limit of jurisdiction which could be granted by, for example, the Emperor of Japan to other Sovereigns, would be over their own subjects in Japanese ships. These ships are part of the territory of Japan, and Japanese jurisdiction extends over aliens in Japanese ships, on the same principle that all persons who are on board a British ship are subject to the law of England. Therefore the British Consular Courts have properly, under the Treaty, jurisdiction over British subjects in Japanese ships on the high seas. But any further jurisdiction over British subjects on the high seas cannot depend upon the Treaty, for the Emperor of Japan could not grant what he does not possess. The validity of its exercise depends therefore on the answer to the previous quesef. ante, p. 50. tion: Can the Consular Courts have jurisdiction validly conferred on them which does not depend on the Treaty? Secondly, as to the deportation of offenders for trial or pun- Deportati on. ishment to an adjacent British possession. The examination of the soundness of the position taken up on this point by Parliament takes us back again to first principles. The course followed is this: The offender, being within the jurisdiction of the British authorities, is brought before the Consular Court. But, under certain circumstances, the jurisdiction is not exercised, and the accused in one case, or the prisoner in the other, is transferred to another jurisdiction. What these circumstances are is found expressed in the various Orders in Council; at the present time only the general aspect of the case is being considered. Now it is obvious from the nature of the case that this law contains within itself a condition which prevents its being applied to all cases. This condition is that the jurisdiction over British offenders is vested exclusively in the British authorities. In one class of exterritorial Treaty, as we have seen, the jurisdiction is shared by the national authorities. In some the native Government is entitled to watch the proceedings, and to protest against them; in others the native official himself forms part of the tribunal. In these cases there can, on the face of the Cases in which it could Treaties, be no question as to deportation: at least of accused not be persons. But even in the case of convicted prisoners in these applied. cases, and of both accused and convicted persons where the jurisdiction is not shared by the national authorities, there appears to me to be grave doubt whether both the trial and punishment ought not to take place within the country where the offence has occurred. It seems to me to be a very wide construction of the usual words "British authorities," or "other [f. Japanese Treaty with public functionary authorized thereto," which occur in the Italy, ante, p. Treaties, to say that they mean British authorities or function- 55.] aries anywhere. The whole idea of Consular jurisdiction seems to be opposed to it. The peace broken must be, as I have endeavoured to show, the peace of the Sovereign of the country: ante, p. 20. the Queen's law is allowed to determine whether or no any act in question amounts to a breach of that peace, and therefore becomes for British subjects, to all intents and purposes, the law of the country: the Queen's Courts are allowed to examine into the question and pronounce judgment, and therefore become for [Foreign Jurisdiction Act, 1890, s. 3.] British subjects, to all intents and purposes, the Courts of the country; for every act and thing done in pursuance of the Queen's foreign jurisdiction is to be as valid as if it had been done according to the local law of that country: but the whole end of punishment is lost sight of if the trial, at least, does not take place in the country where the offence was committed. The principle seems indeed to be expressly admitted in the Agreement with China of 1876, which explained the 16th Article post, p. 235. of the Treaty of Tientsin. There, although in the Treaty no right of attending proceedings is reserved to the officials of either nation, "it is understood" in the Agreement "that the case is tried by the official of the defendant's nationality," and that "the official of the plaintiff's nationality attends to watch the proceedings in the interests of justice." Punishment of It will be observed, too, that the provisions of the section do not limit the power of deportation to cases in which British subjects alone are concerned; they do not exclude cases in which the prosecutor is a national or a foreigner. Deportation as a punishment may probably be rested on a deportation. sounder footing. It is sometimes to be found expressly sanctioned in a Treaty, as in the case of Madagascar; but it is very frequently, if not invariably, introduced in the Orders in Council, in the case of incorrigible offenders, as a further security for the peace of the country. We shall see presently that a certain amount of legislative power seems to flow from the nature of the grant of jurisdiction. Where this power is unfettered, the introduction of this novel form of punishment seems to be warranted. But the doubt as to whether the introduction of the term "British law" in the grant does not limit this legislative power extends to this question also. The warrant for deportation as a punishment does not seem to extend, however, to deportation either for trial or for punishment. Fugitive offenders. Thirdly, as to the application of the Fugitive Offenders Act to Oriental countries. Consider for a moment what the Fugitive Offenders Act is. It is extradition applied to our Colonial Empire. The conditions of sovereignty enable the net to be cast with much wider sweep |