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."

Sufferance.

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 sufferance. For 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.

Most-favoured-nation Treatment.

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.

122.

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

afford the Consul such assistance as may be required to enable him to cause the laws to be observed by the Dutch when on shore, and to maintain order among the ships." The phrase 'persons who have escaped from justice" probably indicates persons who are within the jurisdiction of the Dutch Consul.

In the case of Persia, the whole of the Queen's jurisdiction cf. post, p. 223. rests on the most-favoured-nation clauses of the Treaty of 1857. None of the usual jurisdiction clauses are included in the Treaty; these are to be found in the Treaties entered into by the Shah with other Powers.*

In the Persian Treaties are to be found articles granting reciprocally to Persians in Europe the right of the most-favourednation. This is, I think, the only example of a reciprocal article in any form in exterritorial Treaties.†

VII.

The Foreign Jurisdiction Act, and the Applied Acts. It is necessary now to take a brief survey of the provisions of the "Act to Consolidate the Foreign_Jurisdiction Acts, 1890" (53 & 54 Vict. c. 37), and of the statutes which by Order in Council may be applied under it to countries where foreign jurisdiction exists.

The preamble recites that, Whereas by Treaty, capitulation, grant, usage, sufferance, and other lawful means, Her Majesty the Queen has jurisdiction within divers foreign countries:

And by the various sections it is provided as follows:

* See Sir Edward Hertslet's 'Persian Treaties, 1891.'

te.g.-"Dans le Royaume d'Italie les sujets Persans seront également dans toutes leurs contestations, soit entre eux, soit avec des sujets Italiens ou étrangers, jugés suivant le mode adopté dans ce Royaume envers les sujets de la nation la plus favorisée.

"Quant aux affaires de la juridiction criminelle, dans les quelles seraient compromis des sujets Italiens en Perse, des sujets Persans en Italie, elles seront jugées en Italie et en Perse suivant le mode adopté dans les deux pays envers les sujets de la nation la plus favorisée."-Treaty between Persia and Italy, 24th September, 1863, Art. v.

1. That it is lawful for the Queen to hold, exercise, and enjoy S. 1, exercise of jurisdiction. such jurisdiction already, or hereafter to be, acquired in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory.

diction in

without

2. That the Queen may exercise jurisdiction over her subjects S. 2, jurisfor the time being resident in or resorting to countries without countries regular Governments with which exterritorial Treaties might be regular entered into, or who might "suffer" such jurisdiction to be government. exercised.

This provision has already been considered. It is only necessary to add that the jurisdiction in this case differs from the ordinary cases of Treaty jurisdiction in being unlimited.

of acts done

3. That acts and things done in pursuance of the Queen's S. 3, validity foreign jurisdiction are to be considered as valid as if they had in pursuance of jurisdiction. been done according to the local law then in force in the foreign country.

This section gives in a very condensed form the second section of the old Act of 1843. It is based, of course, on the maxim, locus regit actum, applying it to the executive and judicatory acts of persons authorized by the Queen to give effect to her jurisdiction in foreign countries.

The section gives some warrant for the propositions that the legislative origin of English law in such a country as Corea is the act of the King of Corea; and that the Consular Courts there, though exercised in the name of the Queen of England, do in fact sit on behalf of the King of Corea, and form part of his system of judicature.

country to be

before

In this connection it is to be observed that, strictly speaking, Law of foreign the acts of jurisdiction of the Queen's Consuls are not strictly legal until the forms for legalizing such acts required by the law complied with of the foreign country have been complied with. For example, jurisdiction exercisable. if the foreign country were under a constitutional form of government, and the Sovereign's Treaties did not form part of the law of the land, but required some additional sanction from the Legislature, then the authority of the Consular Courts would not be validly exercised until that sanction had been given: or if the Treaty required promulgation in the form of a law, then not until the promulgation had taken place.