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within the dominions of the Kings of Siam in the Supreme Court
of the Straits Settlements."
39 & 40 Vict. c. 46, secs. 4 & 6, whereby the subjects of cf. post, p. 154. certain Indian princes were made amenable to certain Orders in
Orders in Council issued in pursuance of any of the repealed Existing Acts which were in force on the 4th August, 1890, are to con- Council. tinue in force until altered or revoked by the Queen in Council; and Orders referring to any repealed Act are to be construed as referring to the corresponding enactment of the Consolidation Act.
The Special Forms of the Jurisdiction.
THE Act of Parliament gives powers to the Sovereign with regard to the exercise of her foreign jurisdiction in very general terms. We have now to examine the special forms of it which the Sovereign has acquired by different Treaties.
For very obvious reasons the grants in the different Treaties are never identical. This remark applies even to the Treaties with China and Japan, which were both negotiated by the Earl of Elgin in the same year, 1858. For convenience of reference the jurisdiction clauses of the several Treaties have been set out in full at the end of the volume. For our present purpose it is necessary only to refer to the broad principles contained in
The cases which are dealt with in the Treaties are chiefly the Cases following:
Crimes by subjects against subjects.
included in the jurisdiction clauses of the
Cession of territory.
Protection includes cession of
6. Action brought by a subject against a subject.
The term "national" is used to denote a subject of the country in which the Treaty rights are acquired :
subject," to denote a subject of the Queen :
"foreigner," to denote a subject or citizen of a third Power. The method of dealing with these cases varies, as I have said; but some attempt at collating the principles may be made.
Taking complete cession or conquest of territory, the case in which the sovereign jurisdiction over subjects, foreigners and nationals alike, is absolute and unlimited, as the starting point, the next degree of foreign jurisdiction is to be found in a "protected" State. In this case there is usually complete cession of jurisdiction without cession of territory. It may, and generally jurisdiction. does, embrace subjects, foreigners, and nationals; thus, in the agreement with the Barolongs, in South Africa, the Chief of the people says, "I give the Queen to rule in my country over white men and black men"; and after defining the several powers he concludes, "and effectually to confirm the government and authority which I give to the Queen by this agreement."
Distinction between protection and exterritoriality.
Passing from protection in its various degrees, all of which include some jurisdiction over others than subjects of the protecting States, we come to exterritoriality in its various degrees, which is practically confined to the subjects of the country acquiring the rights by Treaty; jurisdiction over foreigners being incidental only, and limited to cases in which one of the parties at least is a subject.
This indeed gives us the fundamental principle of exexterritori- territoriality, which is that the defendant's nationality is in all ality: the law cases to determine the law to be applied to the case, and the nationality judge who is to apply it. The grant in its broadest form is “jurisdiction over the persons and property of British subjects;' but it is not accurate to assume this as the general definition.
Under the simple and common form, all crimes by British subjects are to be tried, and all civil actions against British subjects are to be adjudicated upon, by the British authorities. And conversely, all crimes by nationals committed against British subjects, and all civil actions by British subjects against nationals, remain within the jurisdiction of the national Courts.
The question how far foreigners are affected by this and other forms of the grant is a little complicated, and will be best considered separately.
There are two varieties of this common form.
The first, of which however the Tongan Treaty seems to be Variations in the only example, recognises the existence of the laws of the Recognition country wherein the rights are exercised. Thus, where the of native offence charged is a crime both by the laws of England and of Tonga, the party charged may elect whether he will be tried by the British or by the Tongan Court.
The second variety provides for the presence in Court of some Official official of the nationality of the plaintiff or prosecutor to watch of plaintiff. the case. The powers of this official are variously defined in the Treaties in that with Corea he is to be allowed to attend the hearing, and to be treated with the courtesy due to his position; and further he is to be allowed "whenever he thinks it necessary, to call, examine, and cross-examine witnesses, and to protest against the proceedings or decision." This, I think, is the most extended instance of his power; as a rule, as in the Kashgar and Yarkund Treaty, it is limited to a protest against the decision; there the British representative, "if he considers that justice has not been done," may represent the matter to the Ameer, who may order the case to be retried.
In the second form of exterritoriality, the official of the Second form. Judge of plaintiff's, or prosecutor's, nationality becomes a judge; and we plaintiff's come to what are known as mixed Courts, which have jurisdiction nationality forms part of over cases in which one of the parties is a national and the other Court. a subject. Thus in the old Treaty with Burmah it was declared that "civil cases between Burmese subjects and registered British subjects shall be heard and finally decided by a mixed Court, composed of the British Political Agent, and a suitable Burmese officer of high rank." Disputes between British subjects are in
[The mixed Courts in
diction of the
this case usually put within the sole jurisdiction of the British authorities.
Where the foreign community has attained to considerable Egypt do not dimensions, the mixed Courts of different nationalities may be oust the juris found to be merged, by consent of the Governments interested, into one permanent tribunal, of which the bench is composed of both native and foreign Judges. Each nationality may or may not be represented on the bench of Judges according to the terms of the mutual agreement. The mixed Courts of Egypt are constructed on this principle.
Consuls in ordinary crim inal matters, cf. post, pp. 204, 207.]
In the third form the local sovereignty obtains still further recognition. The mixed Court is to administer the national law, and its sentences are to be executed by the Sovereign of
this from of incisdiction seeme
one party is a British subject and the other a foreigner, the case may with the consent of the parties be tried by the British representative; but in the absence of such consent, the jurisdiction of the Ameer's Courts remains intact.
Briefly, then, between a Colony and an absolutely independent country, there are the following intermediate states:
1. Countries under protection;
2. Countries which have surrendered all judicial jurisdiction over the persons and property of subjects of other countries;
3. Countries in which this surrender is only partial, the sovereignty being retained in the mixed Courts;
4. Countries in which this surrender is special, jurisdic-
other Powers are concerned being retained.
The second, as I have said, is the common case, and it requires careful consideration. I propose presently to examine what such a grant of jurisdiction involves; but it is important in the first place to examine the terms in which the grant is described, because the Treaties do not-except in the simple ones with Tajoura and Zaila, in which the surrender of British subjects to post, p. 219. their own laws in criminal cases is stated in so many wordsexpress the grant in very simple language.
By way of illustration we may examine the wording of the Terms in Treaty with Japan.
which common form is granted. (a) All questions in regard to rights, whether of property or person, arising between British subjects in Japan shall be subject post, p. 237. to the jurisdiction of the British authorities.
In this provision civil jurisdiction only is granted, though it is Civil often assumed to cover criminal jurisdiction as well. An assault, for example, committed by Smith on Jones appears to many to be a "question in regard to the right of the person " whether it be examined into in the action of "Jones versus Smith," or in the proceeding, "The Queen, on the prosecution of Jones, versus Smith." But in the latter case the question does not arise between Jones and Smith, but between the Queen of England— in Japan, by permission of the Emperor of Japan-and Mr. Smith.
The examination of this clause brings to mind a statement On the commonly current where such matters are discussed, that Treaties of Treaties. are not to be strictly construed as if they were legal documents. In his judgment in Maltass v. Maltass (1 Robertson's Ecclesiastical Reports, at p. 76), Dr. Lushington said, "Now, in the construction of Treaties of this description, we cannot expect to find the same nicety of strict definition as in modern documents, such as deeds, or Acts of Parliament; it has never been the habit of those engaged in diplomacy to use legal accuracy, but rather to adopt more liberal terms. I think, in construing these Treaties [the Turkish Capitulations], we ought to look at all the historical circumstances attending them, in order to