Extra-territorial legisla

Of allegiance, the unwritten bond which tied the subject to his Sovereign, there is nothing practical left in these modern days. Statutory obedience has taken its place: the clauses of the old bond are supplanted by neatly engrossed and somewhat quaintly expressed sections of Acts of Parliament. Yet the name remains, and there is still attached to it the personal feeling of respect and devotion to the Sovereign which is the modern substitute for knightly service.

NOTE. The directions to Ambassadors and Consuls contained in the tion affecting Foreign Marriage Acts, to which reference has been made in this section, Ambassadors raise an important question in connection with the validity of extra-terriand Consuls. torial laws: how far legislation is permissible with regard to diplomatic and consular officers in foreign countries. Although ambassadorial privileges are not extended to Consuls, a sanction from the foreign Sovereign is necessary for Consuls as well as Ambassadors before they can assume their official duties in his country. In both cases there must further be implied a permission to regulate those duties by law the right of making extra-territorial laws imposing duties on these officers must be admitted. Whether the right be exercised by the Sovereign or the Parliament would be determined by the Constitution of the country to which the officers belong.

Thus, in connection with the exterritorial privilege of Ambassadors and their suites, it would seem legitimate for the Queen by Order in Council to regulate the punishment abroad by the Ambassador of offences committed by his suite. And so it would seem legitimate for Parliament to pass extra-territorial statutes regulating the duties of Consuls abroad, within the recognised limits of the duties of such officers.

On the other hand, the foreign Sovereign would legitimately protest against an Order in Council empowering Ambassadors to punish, for example, British subjects for offences committed within the grounds of the Embassy or against an Act of Parliament empowering Consuls to perform some act which is not only not within their usual duties, but is also contrary to the law of the foreign country. A fortiori would such a protest be legitimate if a statute were passed empowering persons who belong neither to the diplomatic nor consular services to do some act which the foreign law forbids.

The chief enactments affecting Consuls are of three kinds. First, the Consular Act, 6 Geo. IV. c. 87, regulating salaries, and the fees to be collected for services rendered to British subjects; secondly, the Commissioners for Oaths Act, 52 Vict. c. 10, empowering Consuls to administer oaths, take affidavits, and do other notarial acts; thirdly, the Foreign Marriage Acts, from 1849 to 1891.

With regard to the first, it is to be observed that the fees are made payable by contract for services rendered. But it would seem probable that, even if the contract forms given at the end of the Tables of Fees were not used, the Consul could recover the fees in the foreign Court, judicial notice being taken, if not of the English statute, at least of the principle of contract which it lays down.

But both with regard to the administration of oaths and the solemnization of marriages, it may well be that the Consul's duties may lead to a violation of the law in some foreign countries, and it could not well be argued that such duties fall within the recognised routine of Consular work.

There is a mysterious provision in the Foreign Marriage Act of 1891 54 & 55 Vict. (section 8), by which a marriage officer is not required to solemnize a c. 74. marriage, or to allow a marriage to be solemnized in his presence, "if in his opinion the solemnization thereof would be inconsistent with international law or the comity of nations;" an appeal against his refusal being allowed to the Secretary of State, "who shall thereupon either confirm the refusal or direct the solemnization of the marriage."

How the solemnization of a marriage can be inconsistent with international law or with the comity of nations it is difficult to imagine. Presumably the section was inserted to meet the case, suggested above, of the solemnization violating the law of the country where it is proposed that the marriage should take place; instead of "international law or the comity of nations" we may read, if this assumption is correct, "the lex loci." Were it not for the draughtsman's blunder, it would have been unnecessary to point out that the recognition of the existence of the sovereign rights of other nations does not depend upon comity; and that the territorial limit of sovereignty is a question more appertaining to geography than to law.

The validity of extra-territorial laws when they come to be examined post, p. 44. by the Courts of law will be considered in a subsequent note.

III.

Extension of Principles to Uncivilised Countries.

General Theory of Exterritoriality.

laid down in

cation.

I MAY now proceed with greater confidence to apply the two The principles fundamental propositions advanced in the first section to the I. are of unisubject in hand. The Foreign Jurisdiction Act of 1878, which versal appligave the Queen power over her subjects in countries without regular forms of government, very distinctly recognised the application of these two fundamental principles to all governed territories, irrespective of the form which the government takes,

Sect. 5.—In any country or place out of Her Majesty's dominions, in or to which any of Her Majesty's subjects are for the time being resident or resorting, and which is not subject to any Government from whom Her Majesty might obtain power and jurisdiction by Treaty or any of the other

C

ernment erec

irrespective too of the correct attribute applicable to the people. They are as applicable to uncivilised as to civilised communities: to Mahomedan, Buddhist, and Christian alike. The treatyJurisdiction making prerogative of any Government which is recognised in ungoverned countries cea by the people it professes to govern is admitted; and the claim ses when Gov" of the Queen's jurisdiction over her subjects in territories without ted by natives. regular Governments when it was asserted, falls to the ground directly the natives establish a regular Government for themselves with which an exterritorial Treaty may be concluded; or directly a valid and effectual full claim to the territory is made by another Power in accordance with the usages of International Law.

Exterritoriality depends on a Treaty

grant, and not on the Queen's sov ereignty or

This gives us as a corollary from what has gone before the first and fundamental principle of exterritoriality. The Queen's foreign jurisdiction in a governed country is not exercised by any inherent right of sovereignty which she herself possesses: the power of nor by any inherent right in Parliament, in virtue of its omnipotence, to grant it to her-inherent right, that is to say, over her subjects because they are her subjects. It is exercised solely in virtue of the grant, or permission to exercise it, which the Queen has received from the Sovereign to whom the territory belongs.

Parliament.

The grant is in almost all cases by Treaty, and in the terms of the Treaty lies the definition of the Queen's rights. Complete exterritoriality in an independent State is practically unknown. Such grants are to be found, but only in connection with a fully Exterritorial protected state. Exterritoriality is a question of degree. This rights vary in The Sovereign's power different coun- results from the very nature of the case. does not arise in all its majesty and perfection over her subjects in Eastern lands; but only so much of it as the Eastern Potentates will permit by force of grace or arms. It might indeed be argued that the rights she exercises in Oriental

tries.

means mentioned in the Foreign Jurisdiction Act, 1843 [i.e. "capitulation, grant, usage, sufferance, and other lawful means"], Her Majesty shall by virtue of this Act have power and jurisdiction over Her Majesty's subjects for the time being resident in or resorting to that country or place, and the same shall be deemed power and jurisdiction had by Her Majesty therein within the Foreign Jurisdiction Act, 1843.

diction may

countries are not her sovereign rights at all, but merely the delegated rights of the actual Sovereigns of those countries. It is certain that they are exercised not in virtue of mere abandonment, but in virtue of a definite abandonment to her; and it seems equally clear that in theory the abandonment is not necessarily confined to subjects of the Sovereign with whom the Treaty is made. It might include, if the Sovereign were willing Foreign jurisand had power under his own Constitution to accept it, rights include foover the subjects of other nations. The power of the English reigners as subSovereign to accept, or rather, as we shall see, to exercise jects. such jurisdiction would depend solely on the authority granted by the English Parliament; the other States whose subjects were affected would have nothing to say to it, and nothing to do, but to resort to diplomatic, or more forcible, remonstrance. The establishment of protectorates involves this proposition. This point is, in the opinion of some, not free from doubt. It post p. 94. will be more fully dealt with in a subsequent section.

It may be noted here in passing, that the first section of the Foreign Jurisdiction Act deals simply with the Queen's jurisdiction in foreign countries; it is not limited in any way to British subjects.

It is true that the exercise of the Queen's jurisdiction by her Theory of exterritoriality. Consuls of greater and less degree is what might be described as "eminently practical"; it is true that questions involving the theory of this anomalous form of government rarely arise, or if they do, find a practical rather than a theoretical solution. But there must be some governing principles which may be referred to when complicated questions arise, as they must frequently arise, when the progress of the Oriental State towards civilization is rapid. I do not propose to go further than to indicate what these governing principles of the subject are. They cannot be unimportant; indeed they somewhat force themselves on the attention, when in an indictment drawn in the Consular Court of Yokohama, for example, an assault on your "boy" at Nikko is described as being "against the peace of our Lady the Queen, her crown and dignity."

The "peace" broken by an assault, or other crime, cannot be other than the peace of the Sovereign of the country in which it

The peace of the Sovereign.

The system

involves pun.

is committed. The fact that the power of punishing the offender is granted to his own Sovereign, even though the criminality of the offence be judged, and the punishment be determined, by a law which is not the national law, does not alter the main principle. It is not as though the British community were put under the protection of their Sovereign, so that the peace of the community might in some measure be regarded as part of the larger peace of Great Britain. For in any crime the public peace is broken because of the offence to one whom the Government of the community protects. Whereas in the criminal jurisdiction under a system of exterritoriality the person injured is not taken into account; the nationality of the offender is the sole criterion of the Court and law by which the nature of his offence will be tried. If it were true to say that the Queen's peace is broken by any crime which an Englishman commits when Englishmen in a foreign country are put under her jurisdiction, it would also be true to say that the King's peace is broken when an Italian commits a crime, the peace of the Republic when a Frenchman commits a crime, in a country in which Italians and Frenchmen are under the jurisdiction of their own laws.

The simple position is that Englishmen in Oriental countries ishment, but are put under the jurisdiction of the Queen; it matters not not protection of the subject, who is the victim of the crime he may be a Russian, a Spaniard, an American, or a subject of the Oriental country itself. There is no question of protection of the subject:

* Precisely the same question arises with respect to a murder by an Englishman in a foreign country.

In the case of R. v. Sawyer (Russell & Ryan, 294), it was held that the indictment need not conclude contra formam statuti; but the indictment was under the 33 Hen. viii. c. 23, which did not create the authority to try a person for murder committed out of England, but introduced a reform in procedure. Contra pacem imported protection of the subject: under the old law it was absolutely necessary to show that the person killed abroad was a subject of the Sovereign ; and hence a species of extra-territorial protection. But now the statute (9 Geo. iv. c. 31, s. 7, as interpreted by R. v. Azzopardi -Moody's Crown Cases, p. 288—and afterwards expressly by 24 & 25 Vict. c. 100, s. 9), has made the murder by British subjects of foreigners abroad triable in England, it seems obvious that the crime is against the form of the statute, and not against the Queen's peace.