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 nationality. tected native servants in some cases, cf. Dr. Lushington's judgment. 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 resort. 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. applicable to the national 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 law. 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, 237. 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 cf. 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, Council deal 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 the Japan, O. in C. 1860. be Arts. xi. xii. The Order of 1860 decreed "that it shall be lawful for 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." Art. 117. 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." Art. 47. 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. |