The system which the claim and grant of foreign jurisdiction has called into being is artificial in the extreme. It recognises the existence of two separate communities in the same country. Where one is savage and the other is civilised, the points of disturbance are few. But where the foreign community is a large one carrying on a prosperous trade; and where the native community is also prosperous and busy, has its own laws, police, courts, and the whole system of executive government, the points of disturbance are many, deepening in interest with every recurrence of them. These points arise as between the members of the foreign community themselves, and between foreigners and nationals.

I propose then to examine in the abstract the principles of English law which are applicable to the European communities established in Eastern countries.

NOTE.-The

NOTE. The words "exterritoriality" and "extra-territoriality" are Terminology treated by some writers as identical; by others as indicating, the first, of the subject. the privilege of Ambassadors and their suites; the second, the Treaty privilege under which Consular jurisdiction has been established in the East.

Both these privileges are, however, more correctly described as "exterritorial"; the condition of those to whom they are accorded as "exterritoriality." On the other hand, the government of these privileged persons by their own authorities from home is "extra-territorial."

The condition of an Ambassador with reference to the jurisdiction of the country to whose Sovereign he is accredited is, in theory, precisely identical with that of a person who is withdrawn from the jurisdiction of the country in which he resides. The two privileges rest on different grounds; the one is granted by courtesy,* the other by Treaty: they [In England differ in degree; the one being almost complete and uniform, while the by Statute :other is partial and varies in different Oriental States: they differ too in7 Anne c. 12.] the resulting relations to the home Government, and the manner in which laws may be passed affecting those who enjoy the privileges. But they have this fundamental fact in common; the ordinary con sequences of residence in a foreign country do not attach, jurisdiction being waived, in greater or less degree, by the Sovereign Authority of that country.

But the government of subjects who enjoy exterritorial privileges must be by means of laws which are an exception to the general rule that laws are territorial in their application: these laws must have an extra-territorial force.

This extra-territorial force can only be given to laws by consent of the foreign Sovereign Authorities of the countries in which they are to operate. And this consent is either tacitly included in the formal cf. note, p. 16. reception accorded to diplomatic or consular representatives, or is

expressly granted by Treaties which put subjects under the jurisdiction of their own authorities.

There are indeed other examples of laws intended to have an extraterritorial effect; that, for example, which makes homicide by an Englishman abroad an offence triable in England. The sanction of such laws is, however, purely territorial, being enforced only by the domestic tribunals.

Ships being theoretically part of the territory of their flag, the laws which deal with offences on the high seas are accurately described as territorial. The privilege accorded to foreign ships of war in harbour is on the other hand another instance of exterritoriality.

The following pages deal only with exterritoriality which is founded on Treaty, and which gives rise to Consular Jurisdiction.

Principles governing British subjects abroad,

I.

The Fundamental Principles Governing Jurisdiction. BEFORE dealing specifically with exterritoriality, it is necessary to establish certain preliminary propositions which lead up to it, and which affect the position of a British subject abroad with regard to his own Government.

The short formula of the civil courts, "out of the jurisdiction," accurately expresses the position, whether the word jurisdiction be used in its personal or its territorial sense. But though we are perfectly familiar with the phrase in civil suits, and understand the consequences attaching to it, we are not so familiar with the principle that "abroad" and "out of the jurisdiction" are synonymous terms with regard to legislation generally, and criminal legislation in particular.

There are nevertheless two broad principles which are the axioms of the subject.

I. All persons are subject to the laws of a country in which they are.

"In which they are," permanently or temporarily. No question of domicil is involved in determining who come within the operation of laws; nor is momentary passage material as a defence for disobedience to them. The globe-trotter and the oldest inhabitant alike owe allegiance to the Sovereign Authority

of the country, though for some purposes it may be convenient to call the one "temporary," and the other "complete."

II. No person is subject to the laws of a country in which he |

is not.

The corollary from the former proposition is obviously this: absence from a country, even though it be the country of his nationality, withdraws a person from the operation of the laws of that country, and—subject to the application of another principle -relieves him from obedience to them. These two principles are the amplification of the maxim which appears in the law books, as "laws have no extra-territorial force," "laws are territorial in their application."

The King under whose sway I am is the King in whose dominions I am; the other King resumes his power when I reenter his territory.

This is a truism which may yet be profitably illustrated by example. No one doubts that an Englishman who forges a document at Calais is a French criminal. If the document were a cheque on a London bank, it is not so certain but that some would doubt.

of Parliament.

But the principle belongs to the domain of theoretical jurisprudence its practical application practical legislatures have not been willing at all times to recognise. There is another principle, or rather theory, which declares the omnipotence of Parliament; Omnipotence Parliament can do what it likes within its own domain. And though it has never cast a doubt on the inclusion of all "resident in this realm" within its sway, it has thought fit not to hold itself too strictly bound by the second principle. It has in fact in some cases presumed to regulate men's conduct abroad; it has indeed not always confined itself to British subjects. If the wisdom of our legislators should impel them to it, Parliament at Westminster could to-morrow pass a law inflicting extreme penalties on all who had at any time previously gambled at Monte Carlo; and the English Courts of Law would presumably be bound to enforce the penalties when an offender was brought before them.

It need hardly be said that so quaint an enactment is not to Extra-terri torial laws.. be found in our Statute Book, but there are many laws which

35 H. viii.

C. 2.

do in fact provide for the punishment of offences committed by British subjects abroad; the breach of the peace of the Sovereign being legally laid in Middlesex. The earliest, I think, of these enactments was passed in the year 1543, "for the Trial of Treasons committed out of the King's Majesty's Dominions." It recited that "Forasmuch as some doubts and questions have been moved, that certain kinds of treasons, misprisions, concealments of treasons, done, perpetrated, or committed out of the King's Majesty's realm of England, and other his Grace's dominions, cannot, nor may, by the common laws of this realm be enquired of, heard and determined within this his said realm of England; for a plain remedy, order and declaration therein to be had and made," it was enacted that henceforth such offences should be tried before the King's justices. The statute applied to "any person or persons out of this realm of England.”

The catalogue of offences committed abroad which may be tried in England includes inducements to mutiny and take seditious oaths; coinage offences; murder and manslaughter; offences against the bankruptcy laws, and others. In many foreign countries the catalogue is much longer.

But there is an obvious impediment in the way of enforcing such laws which imposes a practical limitation to this omnipotence of Parliament, even with regard to British subjects abroad; for extra-territorial laws must be of imperfect sanction. And Their enforce/moreover their existence does not absolve the persons to whom they apply from obedience to the law of the country in which f. note, p. 45 they are, nor withdraw them from the jurisdiction of its Courts. a trial abroad If such a law is broken, and the offender comes back to England, for the same

ment is territorial.

as to effect of

offence.

he can be apprehended and brought to trial; but there is obviously no machinery inherent in the Executive or the Judicature by which he can be brought to justice if he remains abroad. Recourse may be had to trial in absence, but the Courts possess no means of carrying any personal sentence into force the only penalty which Parliament can adopt is outlawry and confiscation of goods.

The principle of the Civil Courts is different. So long as the defendant is within the jurisdiction when the writ is served upon him, all matters committed abroad, with a few well-understood

exceptions, may be enquired into by the Courts. And the wellknown rules for service out of the jurisdiction give the Courts power to hear and determine certain cases against defendants who are abroad. These cases are not limited to matters arising within the jurisdiction, nor indeed are they limited to British subjects.

But even with regard to territorial laws, the criminal's escape Extradition. to a foreign country paralyses their operation. There is no power inherent in a State to bring its escaped criminals back to justice; and the general refusal of States to surrender even convicted criminals to their own Governments adds to the difficulties of the position.

These difficulties Extradition Treaties have in some measure, but in some measure only, removed.

To revert to the original example.

A forgery committed by an Englishman on the eve of his departure from Calais is a crime against the law of France; if he were arrested while still in the country, he would be tried and punished according to that law.

Now if he escaped and were discovered in Spain, he would be properly extradited to France. But if he were discovered in England his extradition would be refused, in accordance with the prevalent rule (to which the Anglo-French Treaty forms no exception) that a country cannot properly be asked to surrender its own subjects on a requisition for extradition.

in Law of Ex

Between the theory of legislation and the practice of extradition, there is a hiatus in the completeness of the sanction created by the combined operation of national and international criminal law. On the one hand, France-to keep to the Casus omissus concrete-cannot operate against English subjects who commit tradition. offences in France and afterwards escape to England, neither can it demand their extradition. On the other hand, England can do nothing, for it does not-speaking broadly-profess to regulate the conduct of English subjects while they are under the protection of another State.

And, while the practice of extradition remains as it is, even the theory of the omnipotence of Parliament is powerless to fill in the hiatus. For extradition is limited universally to offences