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the Sovereign's jurisdiction, and of its exercise being vested in Parliament has no power the Sovereign, apart, British subjects in Oriental countries are as of positive much cut off from the direct interference of Parliament as they are in civilized countries.
legislation over British subjects in Oriental
The question whether the extra-territorial legislation of countries. England is properly applicable, either specially, or generally,
under the Order applying the whole body of English law to cf. post, p. 98. British subjects seems to depend on other considerations.
Jurisdiction by Sufferance.
THE position maintained in the foregoing pages is that the whole question of exterritoriality rests on the Treaty and this both from the point of view of the Sovereign of the foreign country in which it is exercised, and also from the point of view of the persons who are subject to it.
If in a foreign country under ordinary conditions it is beyond the power either of the Sovereign or of Parliament to legalize the commission of any act in that country which is wrongful by the law of that country, or which requires the authority of that law, it must also be beyond the power either of the Sovereign or of Parliament to legalize its commission in a country where exterritorial privileges have been granted, unless it be in fact one of the privileges.
In other words, it is not competent either for the Sovereign or for Parliament to tack on to the powers with which the Consular Courts and officers are invested under the Treaty, other powers which do not exist in other countries and are not to be found among the Treaty privileges. The mere fact that there are an Executive and a Judiciary by which such powers may be carried out cannot render them legitimate.
The Foreign Jurisdiction Act, however, recites that this jurisdiction exists by "Treaty, capitulation, grant, usage, sufferance,
cf. p. 217.
Can Sufferance coexist
and other lawful means." The first three obviously fall under the general head of "Treaty": the last three may conveniently be treated under the head of " sufferance." Practically there are no other "lawful means" of acquiring such a jurisdiction.
With regard to foreign jurisdiction resting solely on sufferance there is little to be said. So far as it is possible to trace the matter, Zanzibar is the only country in which it appears ever to have been claimed as exercisable on sufferance; and in this case a Treaty in which the matter was dealt with was afterwards concluded,
The important question to consider, however, is, whether Sufferance can coexist with Treaty as the basis of the rights. A priori I confess that I should have doubted it: at least diplomatic protest should be sufficient to break the continuity of the sufferance. But, as we are looking at the question from two sides, it is well to see how the matter stands with regard to the British subject in the absence of diplomatic protest on the part of the foreign Sovereign. On this question there is the authority of Dr. Lushington in the case of Papayanni v. The Russian Steam Navigation Co. "The Laconia" (2 Moore's Privy Council Cases, New Series, at p. 181). "It is true beyond all doubt," said the learned judge, "that, as a matter of right, no State can claim jurisdiction of any kind within the territorial limits of another independent State. It is also true that between two Christian States all claims for jurisdiction of any kind, or exemption from jurisdiction, must be founded on Treaty, or engagements of similar validity . . . But though, according to the laws and usages of European nations, a cession of jurisdiction to the subjects of one State within the territory of another would require, generally at least, the sanction of a Treaty, it may by no means follow that the same strict forms, the same precision of Treaty obligations, would be required or found in intercourse with the Ottoman Porte. It is true, as we have said, that if you enquire as to the existence of any particular privileges conceded to one State in the dominions of another, you would, amongst European nations, look to the subsisting Treaties; but this mode of incurring obligations, or of investigating what has been conceded, is matter of custom and not of natural justice. Any
mode of proof by which it is shown that a privilege is conceded is, according to the principles of natural justice, sufficient for the purpose. The formality of a Treaty is the best proof of the consent and acquiescence of parties; but it is not the only proof, nor does it exclude other proof; and more especially in transactions with Oriental states. Consent may be expressed in various ways; by constant usage permitted and acquiesced in by the authorities of the State, active assent, or silent acquiescence, where there must be full knowledge."
Without pausing to analyze this enunciation of the law, which Meaning of is unfortunately somewhat vague in parts, we do find a very explicit statement of the meaning of the term sufferance: there must be “full knowledge," and then there may be either active assent," or "silent acquiescence." So that, if we accept the extraordinary proposition that Treaty rights do not vary according to the terms of the Treaties, but according to the nationality, or religion, of the other contracting party, we may possibly be compelled to admit, as a corollary to this proposition, that rights by sufferance can spring up after the rights by Treaty have been defined. But this is a different proposition from saying that because jurisdiction is claimed to be exercised which the Treaty does not support, therefore it is exercised by sufferFor the warrant for this must be full knowledge in the other contracting party; and without this full knowledge there can be no sufferance: a proposition which perhaps after all needed no demonstration.
And once again, according to the views already expressed, this full knowledge is essential to justify the assumption of jurisdiction as against the British subject, for exterritorial Courts are Courts established to give effect to Treaty privileges: they are not established to remedy the imperfect sanction of extraterritorial laws.
The chief point in the case of " The Laconia" was the power over foreign subjects who had consented to the jurisdiction: this point will be considered in due course. With regard to the other proposition laid down in the judgment—that "the objection, if any such could properly be urged, should come from the Ottoman Government rather than a British suitor, who, in this case, is
ante, p. 20.
bound by the law established by his own country. The case may, in some degree, be assimilated to the violation of neutral territory by a belligerent; the neutral State can alone complain' -it is now sufficient to say that it does not seem to be warranted by general principles already discussed.
There is yet one further view of the general aspect of the subject which may be assumed to warrant a jurisdiction which is not supported by, or not actually within, the Treaty.
The exterritorial privileges granted by Treaty amount in fact to protection of British subjects; and according to the maxim, protectio trahit subjectionem, et subjectio protectionem. Therefore allegiance to the Sovereign is due, or its modern substitute, obedience to Acts of Parliament. The obvious answer to the proposition is that there is not full protection, but only partial protection; and therefore the allegiance, or obedience, required is not full, but only partial: and the very terms of the permission to exercise the protection indicate the amount of allegiance, or obedience, which may be exacted. How partial the protection
is has already been explained.
The most-favoured-nation clauses in the different Treaties introduce another element of difficulty into the subject. The actual Treaty grant of privileges to any one country is, by virtue of these clauses, the sum of all the privileges contained in the Treaties entered into with all the Powers by the Sovereign grantor. And therefore if it should ever come to be a question, as in these pages I have assumed that it may, whether the jurisdiction claimed to be exercised falls within the Treaty grant, not only must the article in the English Treaty be looked to, but also all the corresponding articles in the exterritorial Treaties with the other Powers.* As these Treaties are entered
e.g." It is hereby expressly stipulated that the British Government and its subjects will be allowed free and equal participation in all privileges, immunities, and advantages, that may have been, or may be hereafter, granted by His Majesty the Tycoon of Japan to the Government or subjects of any other nation."-Treaty between Japan and Great Britain, Aug. 26, 1858, Art. xxiii.
into at different times, it may well be that in the later ones difficulties are removed which have arisen in the construction of the earlier ones, the benefit conferred on the one Power being automatically conferred on all the others existing at the time. It may be unnecessary, therefore, in all cases to rely on sufferance for the exercise of some power which appears to exceed the actual grant to Great Britain. This remark applies also to the questions which are considered in XIIth and XIIIth sections, in post, pp. 117, which certain points are theoretically considered which do not appear to be warranted by the general form of the Treaties. In applying the principles which I have endeavoured to work out to any given Oriental country, all the grants made by that country must be examined. The most-favoured-nation treatment appears to work backwards as well as forwards. A later grant of jurisdiction, though less in extent than an earlier one, must, if coupled with the most-favoured-nation treatment, be treated as of the same extent.
There are many practical reasons why it has been impossible to set out in the Appendix any others than the English Treaties. Many of them are not easily accessible; and where they are accessible, they have been made so in the different publications to which Sir Edward Hertslet has devoted so much labour, and on which I hesitated to make such extended drafts.
One example of the varied form of grant in Treaties with different countries I may note by way of illustration.
In some of the Japanese Treaties, for example that with the Austro-Hungarian Empire, an article is introduced dealing specifically with cases "involving a penalty or confiscation by cf. bost, p. 117. reason of any breach of this Treaty, the Trade Regulations, or the Tariff annexed thereto."
Again, in the Italian Treaty the words of the fourth article in the English Treaty, "shall be subject to the jurisdiction of the
British authorities," read, " shall be subject to the jurisdiction of f. post, p. 101. the constituted Italian authorities in the country."
And in the Treaty with the Netherlands, "the Japanese authorities shall cause any deserters and persons who have escaped from justice to be imprisoned, and such persons as may cf. post, p. 96. be in the custody of the Consul to be imprisoned; they shall