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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.
and owe tem
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 porary 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
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. Rights of the The exact position involved in exterritoriality may be shortly Sovereign not granted away stated thus: such powers alone as are surrendered by the by Treaty remain to him. 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.
post, p. 82.
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.
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."
described as the Queen's "Foreign Jurisdiction." But, in England at least, there is another element which we are forced to consider, the Parliament. Indeed, the mere statement of the fact that the Sovereign has acquired power and jurisdiction over peoplewhether it is confined to her own subjects or not is immaterial for the present purpose-in a foreign country, immediately suggests the question whether she has a constitutional right to exercise this power without the sanction of Parliament.
The problem presents itself in this form: The Treaty-making Enquiry if Parliamentary power is one of the prerogatives of the Crown. The law does authority nenot fetter the prerogative with regard to the mere acquisition of cessary for rights from, nor the mere incurring obligations to, a foreign of Treaty Sovereign. It is only with reference to the exercise of the rights, or the fulfilment of the obligations, in England that Parliamentary authority is necessary. The enabling Extradition Act sanctions the performance of the obligation of extradition. But the analogy between extradition and foreign jurisdiction is not complete, because the rights acquired by Treaty are to be exercised in the foreign country, and not in England. And if it were possible for the Queen to exercise the rights acquired, for example, by the Treaty of Yedo, in Japan itself, I doubt if there would be anything unconstitutional. As a matter of fact, the Queen does not exercise them there; she makes in England authoritative orders as to the manner of their exercise in Japan. Her legislative act takes place in England: it is in fact an extra-territorial act of legislation. But by the Common Law the only extra-territorial power which the Sovereign possesses is in respect of a Crown colony. For countries which Sovereign's come to the Crown by virtue of conquest or cession the Sove- torial power reign may legislate. But the prerogative extends no further. Crown coIn the case of colonies acquired by occupation, although they come within the Queen's dominions, she has no such power. And, therefore, in such cases the authority of Parlia- Authority nement is necessary to enable her to issue her Orders in Council. Take, for example, the Falkland Islands Act of 1843-6 & Vict. c. 13. It recites that, "Whereas divers of Her Majesty's subjects have resorted to and taken up their abode, and may hereafter resort to and take up their abode . . . . on the Falkland
cessary for colonies acquired by occupation.
cf. p. 18.
Islands and whereas it is necessary that Her Majesty should be enabled to make further and better provision for the civil government of the said settlements:" and the Act continues
"Be it therefore enacted . . . . that it shall be lawful for Her Majesty, by any order or orders to be by her made, with the advice of her Privy Council, to establish all such laws ... to constitute such Courts and officers . . . as may be necessary for the peace, order, and good government of Her Majesty's subjects and others within the said . . . settlements . . . ."
The question then arises whether, these Treaty rights having been acquired in virtue of the prerogative, the exercise of them could be regarded as analogous to the exercise of power in the Crown colonies, an enabling statute not being required; or whether the case falls within the ordinary principle that any extra-territorial act of the Queen must have the authority of Parliament. Of this principle we have already had another example in the authority granted to exercise jurisdiction over her subjects in countries without regular forms of government.
The better opinion seems to be that the ordinary principle should apply. In the case of the Crown colonies, the right of the King to legislate did not follow because the acquisition of territory is part of the prerogative, but because the legislative right was itself part of the prerogative. But there does not appear to be any warrant for the proposition that the right to exercise rights independently of Parliamentary authority must follow from the right to acquire them independently of that authority. We come back, therefore, to the proposition that, although rights may be acquired in virtue of the prerogative, they must be exercised within the law; and the exercise of these comparatively modern rights, which have no connection with, and do not add to, the dominions or dignities of the Crown, would be in fact an extra-territorial act of the Sovereign which the law does not allow.
Therefore, to render legal the issue of orders in England for the exercise of rights acquired, and thereafter to be acquired, in foreign countries, an enabling Act was necessary. This enabling Act is known by the name of the "Foreign Jurisdiction Practice prior Act." Prior to the passing of this Act, there were already in
to the Act.
existence some local foreign jurisdiction Acts, which also empowered the Sovereign to issue Orders in Council for the government of his subjects in the country to which they applied: 3 & 4 Will. iv. c. 93, s. 6 for China, 6 & 7 Will. iv. c. 78 for the Ottoman Dominions. The former enactment was not repealed till it was included in the Statute Law Revision Act of 1874; the latter, said in 1843 to have already become a dead letter, was repealed by the Act of that year. Independently of these Acts, however, it would seem to have been legitimate for the Consuls, acting under the authority of the British Ministers, to exercise the jurisdiction which had been granted under the Treaties; the Queen herself being represented in the country. In 'Hertslet's Treaties' a proclamation of Sir Henry [Vol. vi., p. 232.] Pottinger, the British Plenipotentiary in China, is printed. It is dated Hong Kong, 22nd July, 1843. Annexed to it were "General Regulations, under which the British Trade was to be conducted at the Treaty Ports"; the XIIIth Regulation related to "disputes between British subjects and Chinese"; they were put generally within the jurisdiction of the Consul : and "regarding the punishment of English criminals, the English Government will enact the laws necessary to attain that end, and the Consul will be empowered to put them in force."
The Foreign Jurisdiction Act-6 & 7 Vict. c. 94-was passed in 1843, and a complete system was inaugurated by which the [August 24.] Queen was empowered to direct from home the full exercise of her foreign powers. The preamble of the Act recited that, Preamble. "Whereas by treaty, capitulation, grant, usage, sufferance, and other lawful means, Her Majesty hath power and jurisdiction within divers countries and places out of Her Majesty's dominions and whereas doubts have arisen how far the exercise of such power and jurisdiction is controlled and dependent on the laws and customs of this realm, and it is expedient that such doubts should be removed:"
The Act then enacts "that it is, and shall be, lawful for Her Majesty to hold, exercise, and enjoy" the foreign jurisdiction so
In Chitty's Statutes there is a marginal "[sic]" referring to the [Vol. II., p. 1219.] "it is lawful" of the enacting clause. At first sight it looks as