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usage of the realm.—7th, That the free access to the ports of this realm, and the liberty of trading to and from the same, has been secured to merchant strangers, not being of a hostile nation, by Magna Charta and divers other ancient statutes in which it is expressly provided, 'that no manner of ship, which is fraught towards England or elsewhere, be compelled to come to any port of England, nor there to abide against, the will of the masters and mariners of the same, or of the merchants whose the goods be.' And that the said statutes were intended, not only to protect the innocent commerce of friendly nations, but also to secure to the people of this realm, the benefits of a free and open market for the sale of the produce and manufactures thereof; and for the carrying on of such trade as might conduce to the profit and advantage of the realm.—8th, That the above-mentioned Orders of his majesty in Council are in open breach and violation of the said statutes, inasmuch as they direct that ships fraught to other places than this kingdom, and even to ports belonging to his majesty's allies, may be compelled to come to the ports of this realm, or of its dependencies, and there to abide under such restrictions or regulations as his majesty may be advised to impose upon them; and also inasmuch as they direct that the goods laden in such vessels shall not be cleared out again from such ports, without having been, in some cases, previously entered and landed; nor, in other cases, without having obtained from his majesty's officers licences to depart, which licences such Officers are not, by any known law of this realm, authorized to grant." (Hansard's Debates, Vol. X, columns 969-971.)
(3) At The Court Of The Queen's Palace, the 26th of April, 1809.
Present, the King's Most Excellent Majesty in council.
Whereas, His Majesty, by his order in council of the 11th of November, 1807, was pleased, for the reasons assigned therein, to order that "all the ports and places of France and her allies, or any other country at war with His Majesty, and all other ports or places in Europe from which, although not at war with His Majesty, the British flag is excluded, and all ports or places in the colonies belonging to His Majesty's enemies, should from henceforth be subject to the same restrictions in point of trade and navigation as if the same were actually blockaded in the most strict and rigorous manner," and also to prohibit "all trade in articles which are the produce or manufactures of the said countries or colonies," and whereas, His Majesty, having been nevertheless desirous not to subject those countries which were in alliance or in amity with His Majesty to any greater inconvenience than was absolutely inseparable from carrying into effect His Majesty's just determination to counteract the designs of his enemies, did make certain exceptions and modifications expressed in the said order of the 11th of November, and in certain subsequent orders of the 25th of November, declaratory of the aforesaid order of the 11th of November and of the 18th of December, 1807, and the 30th of March, 1808:
And, whereas, in consequence of divers events which have taken place since the date of the first-mentioned order, affecting the relations between Great Britain and the territories of other Powers, it is expedient that sundry parts and provisions of the said orders should be altered or revoked:
His Majesty is therefore pleased, by and with the advice of his Privy Council, to revoke and annul the said several orders, except as hereinafter expressed; and so much of the said several orders, except as aforesaid, is hereby revoked accordingly. And His Majesty is pleased, by and with the advice of his Privy Council, to order, and it is hereby ordered, that all the ports and places as far north as the river Ems, inclusively, under the Government styling itself the Kingdom of Holland, and all ports and places under the Government of France, together with the colonies, plantations, and settlements in possession of those Governments, respectively, and all ports and places in the northern parts of Italy, to be reckoned from the ports of Orbitello and Pesaro, inclusively, shall continue, and be subject to the same restrictions, in point of trade and navigation, without any exception, as if the same were actually blockaded by His Majesty's naval forces in the most strict and rigorous manner; and that every vessel trading from and to the said countries or colonies, plantations or settlements, together with all goods and merchandize on board, shall be condemned as prize to the captors.
And His Majesty is further pleased to order, and it is hereby ordered, that this order shall have effect from the day of the date thereof with respect to any ship, together with its cargo, which may be captured subsequent to such day, on any voyage which is and shall be rendered legal by this order, although such voyage, at the time of the commencement of the same, was unlawful, and prohibited under the said former orders; and such ships, upon being brought in, shall be released accordingly; and with respect to all ships, together with their cargoes, which may be captured in any voyage which was permitted under the exceptions of the orders above mentioned, but which is not permitted according to the provisions of this order, His Majesty is pleased to order, and it is hereby ordered, that such ships and their cargoes shall not be liable to condemnation, unless they shall have received actual notice of the present order before such capture, or, in default of such notice until after the expiration of the like intervals, from the date of this order, as were allowed for constructive notice in the orders of the 25th of November, 1807, and the 18th of May, 1808, at the several places and latitudes therein specified.
And the right honorable the Lords Commissioners of His Majesty's Treasury, His Majesty's principal Secretaries of State, the Lords Commissioners of the Admiralty, and the Judge of the High Court of Admiralty, and Judges of the Courts of the Vice-Admiralty, are to give the necessary directions herein as to them may respectively appertain.
JURISDICTION OVER FOREIGNERS IN SIAM
By Eldon R. James
The course of the development and modification of exterritoriality in Siam is so little known that an account of it may not be without interest to students of international law. Exterritoriality, which affects only a minority of the foreigners resident in Siam, for the majority have never enjoyed its privileges, began less than three generations ago when Siam's legal institutions were still of a primitive sort and it seemed, therefore, to be a logical and simple expedient upon which to base trade relations with Europeans. Since then these institutions have been very considerably modified and exterritoriality, regarded in Siam as a temporary device to last only until the law and the courts could be placed upon a modern footing, has become increasingly burdensome now that the number of foreigners, originally European but now preponderatingly Asiatic, affected by it has grown to considerable proportions, and the administration of justice has been improved and modernized.
The reorganization of courts and law, which has taken place since 1855, and especially since the reorganization of the Ministry of Justice in 1892, accompanied, as it has been, by advances in general administrative efficiency, has resulted in many instances in a progressive amelioration of the régime of exterritoriality. In the course of this process, there have been introduced some novel restrictions upon the action of Siamese courts in their dealings with foreigners and these restrictions and guarantees are not without interest. However, notwithstanding their utility as temporary measures during a period of transition from the old system of justice to the new, many of these guarantees must be regarded as in their turn fast becoming obsolete and doomed to pass with exterritoriality itself and to become matters of historical interest only.
With the promulgation and coming into force of the new codes, the completion of which is not far distant, and with an increasing efficiency in the administration of justice, there will be less and less reason, as the years go by, for insistence upon special procedure in judicial matters involving privileged groups of foreigners which is not insisted upon in other states. The state of the law and of the administration of justice is a matter about which foreigners in all countries are extremely sensitive, but if the progress already made is kept up in the future, Siam may not unreasonably expect to receive at no distant day the consideration in such matters due to a fully free and independent member of international society.
A review of the system of jurisdiction over special groups of foreigners in Siam, if, indeed, the medley of arrangements can be called a system, falls quite naturally into three periods, and for this and other reasons it has seemed more satisfactory to consider the treaties in chronological order rather than to attempt to group them according to topics or by countries. The first of these periods ended with the signing of the British treaty of 1855. The second began in 1855 and ended in 1874 when the treaty with the Government of India was executed, a period of the establishment of consular jurisdiction. The third period, one of the modification of consular jurisdiction, is not yet finished but began in 1874 when the first changes in the régime of exterritoriality were made.1
Prior To 1855
The student of the early Siamese treaties is very much handicapped by the fact that the records of the kingdom were destroyed when Ayuthia, then the capital, was taken and destroyed by the Burmese in 1767. Such records as exist of the international relations of the country before that time can now be found only in the archives of European states and these have not yet been thoroughly searched. Therefore, a study of the documents prior to 1767 must necessarily be incomplete. However, from materials recovered in Europe, together with the somewhat meager descriptions of the system which then prevailed, which are to be found in such contemporary writings as have been printed, some idea can be gathered of the system of jurisdiction over foreigners in the sixteenth, seventeenth, and eighteenth centuries.2
The Portuguese, the first Europeans to come in any considerable number, arrived early in the sixteenth century. They were followed, after a long interval, by the Dutch, and in the early part of the seventeenth century came the English, and about 1662, the French. Danish traders appeared in Tenasserim, then a part of Siam, in 1621, but apparently their stay was short. There were, also, during the seventeenth century, considerable groups of Asiatic peoples, Armenians, Persians, Indians, Malays and others. As a result of the religious persecutions in Japan, a large number of Japanese
1A collection of State Papers of the Kingdom of Siam, 1664-1886, compiled by the Siamese Legation in Paris, was published in London in 1886. Since then no other official collection has appeared, though one is now in course of preparation. A collection, unofficial and incomplete, was published in Bangkok in 1915 by the Bangkok Times, an English newspaper. Wolcott H. Pitkin, Esq., of the New York bar, formerly Adviser in Foreign Affairs to the Siamese Government, has prepared and printed a very useful but unfortunately incomplete collection of treaties as a supplement to his brief, Siam's Case for the Revision of Obsolete Treaty Obligations.
* Many of the references to jurisdiction in the early accounts of Siam have been collected by M. Louis Duplatre, Assistant Legal Adviser in the Siamese Ministry of Justice, in his thesis for the University of Grenoble, Condition des Strangers au Siam. Anderson's English Intercourse with Siam in the Seventeenth Century is a very useful book. See, also, Records of the Relations between Siam and Foreign Countries in the 17th Century, published by the Bajirafiana National Library, Bangkok.
Christians settled in the country about the middle of the seventeenth century. Of course, there were always the Chinese.
No treaties or conventions with the Portuguese during the period under consideration have yet been found, but doubtless there were such and a thorough search of the archives in Portugal and Macao might disclose many documents of interest.
There was in existence in the seventeenth century, a system, which undoubtedly antedated that century, but whether founded originally upon treaty stipulations is now unknown, under which the various national groups were permitted to live in "camps", over each of which was placed a "captain" chosen by his own people with the approval of the king. This captain was the judge in all differences among his nationals but was responsible for all his actions to a Siamese official designated for that purpose. The captain, or as he was sometimes called, the "amphur", which is the title of a subordinate Siamese administrative official at the present time, seems to have been subject in all respects to Siamese jurisdiction, and, indeed, although a foreigner, was regarded as a Siamese functionary, having no official relation to the government to his own country.
The earliest treaty3 containing references to jurisdiction, of which the writer knows, is that with the Dutch United East India Company, acting under the authority of the States-General of the United Netherlands. This treaty, which was signed at Ayuthia on August 22, 1664, after granting to the company certain trading monopolies, provided that, should any of the company's servants commit a grave crime in Siam, neither the king nor the Siamese courts should judge him but he must be delivered to the company's chief to be punished according to Dutch law. If the chief himself committed a capital crime, he was to be kept under arrest by the king until notice had been given to the governor-general. Dutch traders were thus made exempt from Siamese jurisdiction in cases of grave crimes committed by them and this exemption extended even to crimes against the Siamese themselves.
In 1662, a company of French missionaries came to Siam and was received with great cordiality, for the kings of Siam have been without exception extremely tolerant in religious matters. Misconstruing this friendliness, the missionaries persuaded themselves that the king's conversion to Christianity was a possibility and, upon their return to France, they succeeded in interesting Louis XIV in the project of establishing, at one stroke, both the Christian religion and French influence where neither had before existed. Ambassadors from Siam were, also, received by Louis and their reports to the king of Siam assisted greatly in aiding the French attempt. An embassy, headed by M. de Chaumont, was ultimately dispatched to Siam and on December 10, 1685, a treaty4 was signed at Lopburi which dealt ex
• Siamese Slate Papers, p. 233; also, Records of Relations between Siam and Foreign Countries in the 17th Century, Vol. 2, p. 66.
* Siamese State Papers, p. 239.