Jurisdiction ses when Gov 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 treatymaking prerogative of any Government which is recognised by the people it professes to govern is admitted; and the claim 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 the power of Parliament. 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: 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. 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 results from the nature of the case. The Sovereign's power different coun. very tries. 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 means mentioned in the Foreign Jurisdiction Act, 1843 [ie. "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 Sovereign 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. well as sub 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. only of punishment of the subject. Obedience to the law of England in such a country is required, not because that law has any inherent extra-territorial force, nor because of any allegiance due to the Sovereign, such protection as exists being neither correlative nor coextensive with the area of the duties, but because the Sovereign of the country has expressly placed English subjects under the jurisdiction of English law. There is nothing in exterritorial Treaties to prevent the Obedience to English law application to the case of the ordinary principle, that a foreigner results from owes temporary allegiance to the Sovereign of the country in temporary allegiance to which he temporarily resides: owes temporary obedience to the the Eastern Sovereign. law of that country. The fact that his offences are decreed to be judged, and his disputes are allowed to be settled, by the law of his own country, does not remove him from the sphere of this temporary allegiance and obedience, except in so far as it may result from the application of the Treaty grant. Indeed, he owes obedience to the laws of England by virtue solely of his temporary allegiance to the foreign Sovereign. It is in virtue of this alone that the laws of England have any binding and executable force over him in that country. Too much emphasis cannot therefore be placed upon these fundamental principles of exterritoriality, that it has nothing whatever to do with the sovereign rights of the British Crown, nor with the so-called omnipotence of the British Parliament; that its existence depends entirely on the will of the Sovereign of the country wherein it is exercised; and as its existence depends on this, so also does its extent; and its extent is to be found expressed in no other document but the Treaty. Oriental Sov Strictly speaking then, both the protection of, and the right to Foreigners are strictly under exact temporary allegiance from, foreigners in an Oriental State, the protection, reside in the Sovereign of that State. If they are injured by and owe temporary alleginatives, redress must be sought from, and punishment awarded ance to, the by, the tribunals of that State. If they are injured by other ereign. foreigners or by their own countrymen, redress must be sought from, and punishment awarded by, tribunals which are indeed not those of that State, but which owe their existence to the express permission of its Sovereign. This view of the case is not affected by the fact that the Treaty may contain what Rights of the Sovereign not granted away by Treaty remain to him. post, p. 82. amounts to an express stipulation that redress for offences by natives shall be granted, or punishment inflicted, by the native tribunals. There is, however, a converse side of the case, which is not unfrequently lost sight of: the extent of the power which remains in the Sovereign of an Oriental State, as a consequence of the temporary allegiance, or its equivalent, obedience to the law. The exact position involved in exterritoriality may be shortly stated thus: such powers alone as are surrendered by the Sovereign of the country can be exercised by the Sovereign of the Treaty Power;* all those powers which are not surrendered are retained. To the exercise of such powers by the Sovereign of the country, the subjects of the Treaty Power are bound to submit. The question involved in the acquisition of foreign jurisdiction by usage or sufferance will be considered later. So far I have considered only the position of subjects of the Treaty Power vis-à-vis the Sovereign State. NOTE. In considering the general principles applicable to exterritoriality, I have taken its common form, which puts all cases, whether civil or criminal, within the jurisdiction of the forum of the defendant's nationality. The different degrees of exterritoriality will be considered in a later section. Any variations in the application of the general principles will be easily traced from the terms of the Treaty in which the privilege is granted. IV. The Relation of Parliament to the Queen's Foreign EXTERRITORIALITY is therefore the relation established between * The term "Treaty Power" is in common use in the East, and it seems convenient to use it to indicate a State whose Sovereign has acquired extraterritorial rights in another country. The term "Sovereign State" indicates the State whose Sovereign has granted the rights. I have, however, frequently used the expression "Oriental country" in the text, instead of the cumbrous sentence, "country which has granted exterritorial privileges." |