cf. ante, P. 94.

Tort by English subject against foreigner.

:

not, is to be judged by the law of the country where it was committed, means that there must be a duty broken which has been imposed by that law, or a right violated which has been granted by that law the rights and duties being correlative. But the curious position which results from exterritorality is that, as between the subjects of the two States, rights and duties are determined by the nationality of the defendant. The right of a Japanese assaulted by an Englishman is correlative to a duty imposed by English law; the right of an Englishman assaulted by a Japanese is correlative to a duty imposed by Japanese law. Now in the case of an assault committed by an Englishman, say, in France, when we say that by English law, if an action is brought in England, the act must be wrongful according to French law, we do not say that the duty of obedience to French law is imposed by English law on Englishmen in France; we mean simply that locus regit actum, that is, that the law of the place has created the right and the correlative duty. The conditions of exterritoriality seem to prevent the application of this principle; for in the case of an assault by an Englishman on a Japanese, the duty violated has been imposed by the law of England, and not by the law of Japan. It is true that the law of England derives its validity in Japan from the law of that country, but the quality of the act, whether it is wrongful or not, is determined by the law of England and not by the law of Japan.

This case differs entirely in principle from the case of con

tracts.

Where a tort is committed by an Englishman against a foreigner, the fundamental principles of exterritoriality again seem to furnish the answer that English law must alone decide the question of the wrongfulness of the act.

The fundamental idea is, not that redress is put into the hands of the authorities of the different Governments, but that the punishment is, whether the sanction be of the civil or the criminal Courts. It seems impossible therefore to say that the wrongfulness of the act must be judged first by the law of the aggrieved foreigner's nationality; because that would practically be saying-the jurisdiction of the Consular Courts not being

limited to the Settlements-that for Frenchmen Japan, for example, must be looked upon as France; for Germans, as Germany; for British subjects, as England. It is impossible to say that the principle of locus regit actum necessitates a tort by an Englishman against a Frenchman in Japan being judged of by French law. In this case the true locus is Japan just as much as it is in the case of a tort against a Japanese; and if it were right to say that the rule locus regit actum required in the case of a tort against a Japanese the application of the law of Japan, so also it would be right to say that the same rule applied in the case of a tort against a foreigner. This view, however, is, as I think, erroneous; English law furnishing the sole criterion of wrongfulness in all cases of complaint against an English subject, whether the complainant be a Japanese or a foreigner.

It is perhaps needless to remark that the questions discussed in this section may very well be raised in actions brought in the English Courts at home.

Consular

The judgments of the British Consular Courts rank in the same Action on judgments of way as colonial judgments when they are sued on, or pleaded, in English the Courts in England. Tapp v. Jones (Law Reports, 9 Common Courts, Pleas, p. 418), a judgment of the Supreme Court of Shanghai; Grant v. Easton (Law Reports, 13 Queen's Bench Division, p. 302), a judgment of the Vice-Consular Court at Cairo: an application for summary judgment under Order XIV.; Barber v. Lamb (29 Law Journal Reports, Common Pleas, p. 234), a judgment recovered in the Consular Court at Constantinople: held to be a bar to an action in England on the same cause of action.

Consular

And in the same way the judgments of the Consular Courts and of foreign of foreign Powers will be treated as foreign judgments. Dent Courts. v. Smith (Law Reports, 4 Queen's Bench, 414), a judgment of the Russian Consular Court at Constantinople; Messina v. Petrococchino (Law Reports, 4 Privy Council Cases, 144), a judgment of the Greek Court at Constantinople.

"That the Ottoman Porte," said Sir Robert Phillimore, "has given to the Christian Powers of Europe authority to administer justice to their own subjects according to their own laws within

its dominions is a fact publici juris, which their Lordships are not now called upon for the first time to take cognizance of . . . It would be strange, indeed, if it had been otherwise, inasmuch as Her Majesty has established a Supreme Consular Court at Constantinople and provincial Courts, with rules for the exercise of civil and criminal jurisdiction . . . Judicial cognizance being, therefore, taken by their Lordships of the fact that a Greek tribunal, capable of exercising jurisdiction in this case, existed at Constantinople, it is the duty of their Lordships to apply to such tribunal the ordinary principles which regulate the reception of the judgment of a foreign tribunal by other Courts."

abandonment

Example of abandonment.

Method adopted.

XVII.

The Abandonment of Foreign Jurisdiction.

[In Servia the THE abandonment of the Queen's foreign jurisdiction forms is nearly com- naturally the subject of the concluding section of this essay. plete, post, p. Up to the present time there has been no example of simple 199.] abandonment and surrender of jurisdiction in favour of the native laws. But the case of Tunis, in which the jurisdiction was abandoned in favour of the French protectorate, furnishes a convenient example of the process by which such a surrender may be accomplished. The essential documents were three in i. French law. number. First, a French law for the organization of the new French Courts to be established in the country. These tribunals were declared to form part of the jurisdiction of the Supreme Court of Algiers in the French Colony of Algeria. Their jurisdiction is defined in much the same language as the jurisdiction clauses in the Treaties, and includes French and French protected subjects. "Their authority may be extended over all other persons" by edicts of the Bey, issued with the assent of the French Government. This law was promulgated by the

ii. Tunisian law.

Bey.

Secondly, a decree of the Bey of Tunis, reciting the disposition of several of the friendly Powers to renounce the jurisdiction

of their respective Consuls "if their subjects become amenable to the jurisdiction of the French tribunals," and, in conformity with the preceding law, decreeing that "the subjects of the friendly Powers whose Consular tribunals shall be suppressed shall become amenable to the jurisdiction of the French tribunals under the same conditions as the French themselves."

Finally, a British Order in Council, abolishing British Con- iii. English Order in sular jurisdiction in Tunis. The recitals in the Order included Council. the French law, the Bey's decree, and Her Majesty's consent to abandon her Consular jurisdiction "with a view to British subjects in the Regency becoming justiciable by the French tribunals."

These documents afford a good illustration of the fundamental ideas involved in exterritoriality.

Parliament

The Queen merely abandons her jurisdiction in the dominions Act of of the Bey. Her Treaty prerogative, which allows her to acquire unnecessary. such jurisdiction, allows her also to abandon it. The Foreign Jurisdiction Act dealt only with the exercise of the power, and not with the acquisition of it. It declared that if and where acquired it should be exercised in such and such a way. And as it does not touch the acquisition of the power, nor the method, neither does it affect the abandonment of the power, or the method.

The Queen, however, while abandoning her power could do no more. She could not and did not declare that thenceforward her subjects must submit to the jurisdiction of the French Protectorate. Such a declaration would have been inconsistent [As in the case with the abandonment, for it would have become the continuing authority for the exercise of the French jurisdiction. utmost that the Queen could do was to declare the reason her abandonment: that it was done with a view that her subjects should pass under the French jurisdiction, it being known and understood that they would so pass.

of the Mixed Courts in The Egypt and the Order in

for Council of 1876, post, p. 207.]

implies

But abandonment of the Queen's jurisdiction implies the Abandonment resuscitation of the Bey's jurisdiction. And it is in consequence jurisdiction of Queen's of this resuscitation that British subjects pass under the jurisdiction of the Regency by decree of the Bey, and by no other of Bey's jurisdiction. way. This decree of the Bey requiring the assent of the French

resuscitation

Government to assume the jurisdiction over foreigners, because [This assent the gist of such jurisdiction in a foreign country over foreigners would probably be form- lies in the willingness to accept it. The chain by which the ally expressed: though this edifice is demolished is as complete scientifically as the chain by would not which it was erected and supported.

appear to be necessary.]

It is almost superfluous to add now, that if the doctrine that "Parliament can legislate for British subjects anywhere" admitted of the interpretation that "Parliament can not only legislate for British subjects anywhere, but can also empower the Consular Executive to enforce its statutes and its ordinances anywhere," it would have been impossible for the Queen to deprive this Executive of the power to enforce the behests of Parliament. If the doctrine were true, it would have required a special Act to place British subjects in Tunis under the French jurisdiction; but such an Act was not necessary. And neither will an Act be necessary when the time comes and the Queen consents to abolish the jurisdiction of her Consuls in Japan, with a view, not to her subjects passing under the jurisdiction of a protecting State, but to restore to the Emperor, so far as she is concerned, the privileges which once by force of arms and circumstances, but afterward by grace and favour, he has for so long accorded to the foreign communities which have settled in his Empire.