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ascertain what was the true intention of the contracting parties, and to give the widest scope to the language of the Treaties in order to embrace within it all the objects intended to be included."
How far can this doctrine be pressed?
An example of a proper application of it occurs in the case of Hart v. Gumpach (Law Reports, 4 Privy Council Cases, p. 439). post, p. 234. This article in the Treaty of Tientsin was held to include actions for libel. But actions for libel involve questions in regard to rights to reputation. It would be palpably absurd to contend that the parenthesis, "whether of property or person," excluded reputation. But though in the construction of words some laxity may possibly be allowed, in the application of first principles some strictness may at least be contended for. It seems impossible therefore to stretch these words so as to cover the grant of criminal jurisdiction over British subjects.
(6) Japanese guilty of crimes towards British subjects are amenable to the laws and Courts of Japan.
"British subjects who may commit any crime against Japanese subjects, or the subjects or citizens of any other country," are amenable to the laws of Great Britain, and are to be tried by the British Consul or other duly appointed officer.
Here again is a curious point of drafting; crimes by one British subject against another are included in the expression, "any crime against Japanese subjects, or the subjects or citizens of any other country." This however is sufficient, the question cf. ante, p. 20. involved being jurisdiction over British subjects, and not protection of them; and it affords another good example of Dr. Lushington's principle that Treaties are not to be construed with too great precision.
in civil disputes.
(c) Reconciliation is to be attempted by the British Consul both where a British subject "has reason to complain" of a Japanese, and where a Japanese "has reason to complain" of a British subject. Failing reconciliation, the Consul and the Japanese authorities "may together examine into the merits of the case, and decide it equitably."
It is not clear whether the complaint referred to must be of a civil or of a criminal nature. Presumably the article refers to
civil questions only, as the matter in dispute is to be decided
The clause is evidently a relic of the old General Regulations cf. ante, p. 25. for China issued by proclamation of the British Plenipotentiary in 1843—that is, after the Treaty of Peace of Nanking concluded in 1842. The XIIIth regulation dealt with "disputes between British subjects and Chinese," the expression "has reason to complain" being used. The criminal side of the regulation is omitted in the article as it stands in the Treaty.
(d) In the last clause civil questions are also dealt with, Absconding "failure to discharge debts incurred," and also "fraudulent absconding." This would seem to refer only to judgment debtors and bankrupts.
This disposes of cases 1 to 4 of the criminal jurisdiction, and f. p. 81. cases 6, 7, and 9 of the civil jurisdiction.
WE may now proceed to consider the question as it affects foreigners. Where there is one exterritorial Treaty, there are generally several. The rights accorded to one State are usually accorded to others. In Japan, for example, there are sixteen Treaty Powers. But even in Japan it is possible to imagine a foreigner with whose Government there is no Treaty. Under the old system of factories, out of which the more modern jurisdiction A subject of a non-Treaty of the Consuls was evolved, foreigners were supposed to be under Power is the protection of the factory in which they traded, and took a subject to native jurisfictitious nationality from it. "I remember perfectly well," diction. [cf. case of said Sir William Scott, in the case of "The Indian Chief" (3 protected Robinson's Admiralty Reports, at p. 31), "in the later case of persons, post, p. 154.] Mr. Constant de Rubecque, it was the opinion of the Lords, that although he was a Swiss by birth, and no Frenchman, yet if he A different had continued to trade in the French factory in China, which he in factories. had fortunately quitted before the time of capture, he would
have been liable to be considered as a Frenchman." "It is to be remembered, that wherever even a mere factory is founded in the eastern parts of the world, European persons trading under the shelter and protection of those establishments are conceived to take their national character from that association under which they live and carry on their commerce." But the factories have passed away, and with them the protection of foreigners which sprang out of it. At the present time it is perfectly certain that a person in Corea, a subject of a country which was not one of the Corean Treaty Powers, could not claim to be tried for an offence before the British Consul, because he was [f. exception employed in the office of an English merchant. But the in case of pro- questions which have to be considered are by no means simple when the foreigner is the subject of a country which is itself one post, p. 155.] of the Treaty Powers.
The Treaty protection does not include
servants of another
Now it is obvious that the position of a foreigner follows as a corollary from the position of a British subject; it depends entirely on the accuracy of the original proposition. If it were true that British subjects in Corea, for example, owe allegiance to the Queen: may be legislated for by the Parliament at Westminster may have sentence passed on them by the British Consul at Seoul, quite independently of the terms of the Treaty between the Queen of England and the King of Corea, then the same positions are true of Italian subjects in the Hermit Kingdom with regard to their King and Parliament. And then this proposition follows inevitably. Though the King of Corea could give and has given to the Christian Powers of Europe authority to administer justice to their own subjects according to their own laws, he neither has professed to give, nor could give, to one such Power any jurisdiction over the subjects of another Power. But he has left those Powers at liberty to deal with each other as they may think fit, and if the subjects of one country desire to resort to the tribunals of another, there can be no objection to their doing so with the consent of their own Sovereign, and that of the Sovereign to whose tribunals they
I venture to think that this is an impossible proposition; but it was stated in so many words, as applicable to the Ottoman
Porte, by Dr. Lushington, delivering the judgment of the Privy
Argue backwards from it, and we come at once to the astounding theory that sovereignty is an attribute of Christian Sovereigns only. It is true that it is not the custom in exterritorial Treaties to give jurisdiction to one Sovereign over the subjects of another, but the power of doing so exists, notwithstanding; and, as I have before pointed out, the Foreign Jurisdic- cf. ante, p. 30. tion Act is drawn so as to include the exercise by the Queen of jurisdiction over foreigners if policy had warranted or demanded her acceptance of the power. And singularly enough, in the earlier case of "The Griefswald" (Swabey's Admiralty · Reports, at p. 434), Dr. Lushington himself seems to consider that the case is not impossible: for he says, "How the subjects of a foreign Power can be brought within the jurisdiction so conferred, save by Treaty, I have no means of forming an opinion." The learned Judge must have meant a Treaty to which the Sovereign of the country in which the jurisdiction was to be exercised was a party. I wonder how a Treaty would have been worded between England and Italy, giving to the Queen jurisdiction over Italian subjects in Japan. It could not have been done prior to the existence of the Japanese Treaties, and probably it could not have been done since. Let us see then how the matter stands.
cf. post, p. 93.
the national law.
Taking a concrete case: offences committed by an English The law subject against a Russian in Japan will be tried by the English redress is not Court administering English law; and mutatis mutandis, offences by Russians against English subjects will be tried by the Russian authorities administering Russian law. But civil disputes between British subjects and foreigners are treated in a different way. To take a few examples.
In the Corean Treaty the words are, "Jurisdiction over the post, p. 236. persons and property of British subjects in Corea shall be vested exclusively" in the British authorities, who are to try "all cases brought against British subjects by any British or other foreign subject or citizen."
In the Chinese and Japanese Treaties there is no grant of post, PP. 234,
post, pp. 238, 239.
post, pp. 231, 225.
jurisdiction generally; the questions which are put within the jurisdiction of the British authorities are simply all those in regard to rights "arising between British subjects."
In Samoa and Tonga every civil suit which may be brought against British subjects, must be brought before the British High Commissioner for the Western Pacific Islands.
In the Treaties with Borneo and with Kashgar and Yarkund, as we have already seen, the case was expressly kept within the sovereign powers of the Sultan and Ameer respectively. But this express reference is not altogether necessary, for, where there is no surrender of the jurisdiction, it remains with the Sovereign of the country, unless the jurisdiction is exercised by sufferance. And this perhaps is one of the most curious positions which a study of these Treaties reveals, that the jurisdiction of the English Consular Courts in civil actions by foreigners against Englishmen must depend on "usage and sufferance" alone. There probably is in this case the requisite "full knowledge" and "tacit assent," to which reference has ef. ante, p. 53. already been made.
The question involved has evidently been the subject of much consideration. In Lord Campbell's Act of 1836 (6& 7 Will. IV. c. 78), which dealt simply with the jurisdiction of the Consuls in the Ottoman dominions, but which, at the time of the passing of the Act of 1843, was said already to have become a dead letter, we have some indication of the way in which the subject was looked at.* It is, I think, the only statutory reference to the point.
* 6 & 7 Will. IV. c. 78, sec. 2: And whereas cases occasionally arise within the dominions of the Ottoman Porte above specified, and in the States of Barbary, wherein the interposition of His Majesty's Ambassadors, Consuls or other officers is required by the subjects of other Christian Powers in the determination of differences or disputes between such persons and British subjects"; be it therefore enacted, That it shall be lawful for His Majesty, by any Order or Orders in Council, to make and issue, in the same manner, directions and regulations for the guidance of his Ambassadors, Consuls and other officers, and of all other subjects of His Majesty, in cases in which the interposition of His Majesty's Ambassadors, Consuls, and other officers may be so required for the settlement of any differences or disputes which may arise between British subjects and the subjects of any Christian Power within the dominions of the Sublime Porte in Europe, Asia and Africa,