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It will be instructive to see how it has been dealt with in the Orders in different Orders in Council relating to the Consular Courts in ing with Japan.
foreigners. China and
be Arts. xi. xii.
The Order of 1860 decreed "that it shall be lawful for the Japan, O. in Consul of the district within which the party sued shall found, to hear and determine any suit of a civil nature against a British subject, arising within any part of the dominions of the Tycoon of Japan, whether such suit be instituted by a subject of the Tycoon of Japan, or by a subject or citizen of a foreign State in amity with Her Majesty"; and also "to hear and determine any suit of a civil nature arising within any part of the dominions of the Tycoon of Japan, instituted by a British subject against a subject of the Tycoon of Japan, or against a subject or citizen of a foreign State in amity with Her Majesty, provided that the defendant in such suit shall consent to submit to his jurisdiction, and give sufficient security that he will abide by the decision of the Consul, and will pay such expenses as the Consul shall adjudge."
In the Order of 1865, which abrogated that of 1860, it was O. in C. 1865, provided simply that "where a foreigner desires to institute or take any suit or proceeding of a civil nature against a British subject, the Supreme or other Court, according to its jurisdiction, may entertain the same . . . ... and determine it according to the provisions of this Order, and of the rules made under it applicable in the case."
This was repealed by the Order of 1881, which promulgated O. in C. 1881, an elaborate series of rules, dealing, as in 1860, with suits by foreigners and suits against foreigners; both were put within the jurisdiction of the Courts. But the exercise of the jurisdiction was subject to certain provisoes: First, that the foreigner should obtain and file in Court "the consent in writing of the competent authority of his own nation to his submitting"; secondly, that he does submit; thirdly, that he give security, if
and in the States of Barbary: Provided always, that every Order in Council issued by the authority of this Act shall be published in the London Gazette, and shall be laid before the Houses of Parliament, and shall not be binding and effectual until six months after it shall have been so laid before the Houses of Parliament.
O. in C. 1886,
required by the Court, "to pay fees, damages, costs, and expenses, and abide by and perform the decision to be given either by the Court or on appeal."
The submission did not carry with it the right of the defendant to bring a counter-claim or cross-suit against a foreign plaintiff, except by leave of the Court. And this leave would not be given unless it was shown that the claim arose out of the matter in dispute, that there was reasonable ground for it, and that it was not made for vexation or delay. But this provision did not destroy the right of the British defendant to sue the foreigner in the ordinary way provided by the Order after the termination of the pending suit. Further, the enforcement of the order in the first suit might be stayed pending the decision in the second; the same principle being applied in a modified form to an order by a foreign plaintiff obtained against two or more British subjects jointly.
Security was not required from foreigners who were coplaintiffs with a British subject, he being made responsible for all fees and costs.
In 1886 a special Order was issued by which the provisoes as to these suits were altered as follows:
The foreigner is required, first, to file his consent to the jurisdiction of the Court; secondly, "if required by the Court," to obtain and file a certificate in writing from a competent authority of his own Government to the effect that no objection is made by that Government to his submitting in the particular cause or matter to the jurisdiction; thirdly, to give security, if required by the Court.
Thus it will be seen that the view which we have taken of this complicated question has changed from time to time. The Treaty signed in 1858 gave the British authorities jurisdiction in civil disputes between British subjects.
In 1860, an Order in Council was issued empowering the
In 1881, they were restored, and in all cases the consent of the foreigner's Government to his submission, either as plaintiff or defendant, was made a condition precedent.
In 1886, if the Court required it, he had to show merely that
his Government made no objection.
The principles laid down in " The Laconia," already referred to cf. ante, p. 88. in this section, are: first, that Japan could not give jurisdiction to the Queen over foreigners; secondly, that the Queen could agree with other countries as to the exercise of jurisdiction over their subjects.
Now it follows that if the Queen could not get jurisdiction over foreigners by Treaty with Japan, neither could she get it by "usage or sufferance." But, as I have endeavoured to show, neither principle is sound; but that, first, on the contrary Japan could grant the jurisdiction if the Queen chose to accept it; or the Queen could acquire it by sufferance; and secondly, that no amount of agreement to which Japan was not a party would entitle the Queen to exercise any act of sovereignty-such acts as are included in the term jurisdiction—over foreigners in Japan. These propositions are true of foreigners with whose Sovereign Japan has no Treaty. The position is somewhat altered when the foreigners in question are subject to a Treaty.
There is certainly some doubt whether the "power and juris- Doubt if one diction" which one Sovereign has obtained in Japan, may be vest his Treaty Sovereign can properly exercised by vesting it in another Sovereign. In rights in criminal matters it could probably not be done with due regard
to the sovereignty of Japan.
But in civil matters the case Civil suits.
in regard to his plaintiff subjects.
But assuming Japan not to be interested in the question, we Position of still have to determine what the foreign Sovereign has to do with the matter: whether, strictly speaking, his previous consent is necessary as the Order of 1881 supposed-or whether he might simply prohibit, as the Order of 1886 established.
And here the terms of the Treaty grant come in. Where the
Exterritoriality involves no protection of rights.
cf. ante, p. 20.
able is the law
of the wrong
grant is only as between subjects, and as between subjects and nationals when the subject is defendant, we have to put the jurisdiction as between subjects and foreigners on usage and sufferance, before we can say generally that the jurisdiction acquired by any Sovereign over his subjects is complete.
But even if we assume that the jurisdiction of each Treaty Power is complete over its own subjects, the peculiar nature of this jurisdiction must not be lost sight of. In no sense does the foreign Sovereign act as a protector of the rights of his subjects; he merely enforces their duties. In the single instance of disputes between subjects of the same nationality are their rights and duties governed by the same law. The fundamental principle is that the quality of any act is to be governed by the law of the defendant's nationality, and therefore we have this curious result, that a man's duties are governed by his own law, his rights by the law of the person who wrongs him. The civil rights of a Japanese assaulted by an Englishman are correlative to the duties laid on Englishmen by English law. The civil rights of an Englishman assaulted by a Japanese are correlative to the duties laid on Japanese by Japanese law. And so assuming the jurisdiction of the respective Courts properly founded, the rights of a Russian assaulted by an Italian are to be found declared by Italian law; and conversely those of an Italian assaulted by a Russian are declared by Russian law.
And therefore with regard to all except his own nationality a foreigner being in no sense under the protection of his Government in the matter of redress of grievances, I cannot see how the permission of that Government can be made a condition precedent to his obtaining redress in the English Courts against an Englishman for the violation of rights which are declared by, and are correlative to duties established by, the law of England.
Where redress is sought against him, then the permission for him to submit to the jurisdiction of another Sovereign would seem to be necessary, because ex hypothesi the enforcement of his duties is put within the jurisdiction of his own Sovereign.
NOTE. The fundamental idea of a Protectorate involves, as I have already indicated, the grant of jurisdiction by the native Sovereign over
foreigners as well as over the subjects of the protecting State. in its fullest form it includes native subjects as well. Now, diplomatic representations apart, the Governments of those foreigners who, if they continue. to reside in the country, will come under the protecting jurisdiction, have clearly no right to object to its assumption, or to take any steps to withdraw their subjects from its operation. But when exterritorial Treaties exist prior to the creation of the Protectorate, the Governments with whom they have been concluded have an undoubted right to protest against it so far as their own subjects are concerned, their consent is essential. In the case of the Protectorate of France over Tunis we have an example of this consent on the part of England; and in the last section the method of signifying this consent and of post, p. 190. abandoning the jurisdiction will be considered. But such consent cannot be assumed, nor be demanded by the State about to undertake the duties of protection, nor be insisted on by the State about to be protected without involving itself in a breach of its Treaty engagements. This argument, however, does not extend to those rights which, not having been granted by Treaty, remain in the native Sovereign, and can be granted away to any other Sovereign. Nor would it appear to be applicable to jurisdiction acquired by usage or sufferance; for unless the active assent can be turned into active dissent, the jurisdiction by sufferance would become a jurisdiction in perpetuity, and would be a more valuable right than that acquired by a Treaty, which may be subject to revision or to discontinuance,
The Direct Consequences of the Treaty Grant.
HAVING thus enquired into the general nature of the jurisdiction Rights which flow directly acquired by the Queen under her exterritorial Treaties, and the from the different forms of the grant, it is necessary to see what are the grant. legitimate consequences flowing from a more or less general grant. Some further consequences there must obviously be. For if the right of determining disputes be accorded, the right to take steps necessary to their determination must also be included.
of Courts and
A. In the first place then, the grant of jurisdiction over subjects, Establishment whether it be generally in all civil and criminal cases, or whether Judges; it be more specialised so as to include only on the civil side disputes between subjects, carries with it of necessity the right to take all the necessary steps for the purpose of exercising this jurisdiction. This extends even to what must be considered the