Foreign Jurisdiction Act of 1843. (3) Civil proceedings where the defendant was a British ject and the plaintiff subject to another European Power. And the exercise of this jurisdiction might be claimed, not only on behalf of British subjects, but equally on behalf of subjects of other Powers navigating under the flag, or claiming the protection, of Great Britain. It must be borne in mind that the Ionian Islands were at that time under the protection of the British Government, and that cases in which Ionian islanders were concerned were apt to come before the consular courts at Constantinople and elsewhere in the Levant. But, besides the Ionian islanders, there was a motley crew of persons of different nationalities, hangers-on of the embassy and others, who for reasons more or less legitimate claimed British protection. This was the origin of the class of protected persons referred to in modern Orders in Council under the Foreign Jurisdiction Acts 1. Lastly, the Act was so vaguely worded as to leave great room for doubt as to the powers conferred by it on the Crown, and particularly as to how far the Crown could in accordance with it exercise powers of legislation. This was a matter of the greatest moment. Under the capitulations the 'custom of the English was to be observed on the decision of any suit or other difference or dispute amongst the English themselves. And in proceedings between English and Europeans the forum rei was customarily allowed to entail the application of English law to an English defendant, but a strict adherence to English jurisprudence had never been observed. The law to be administered was so vague and uncertain that a power to declare and modify it had become imperatively necessary. The Act of 1836 was repealed and superseded by the Foreign Jurisdiction Act of 1843 (6 & 7 Vict. c. 94). This It is well known how scandalously the privilege of claiming foreign protection has been abused in places like Tangier. As to the restrictions placed on this privilege in Turkey see Young, Corps de Droit Ottoman, ii. 230. Act, the provisions of which are now embodied in the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37), was as conspicuous a success as its predecessor was a conspicuous failure. Its merits were that its recitals were sufficiently comprehensive to cover all possible sources of extra-territorial jurisdiction, and that its enacting words embodied a formula of great simplicity, and yet sufficiently elastic to cover all modes in which extra-territorial jurisdiction need be exercised. The theory on which the Act proceeded was that, in places beyond the Queen's dominions where the Queen had jurisdiction, she ought, with respect to the persons under that jurisdiction, to be in the same position as that which she occupies in a territory acquired by conquest or cession, that is to say, ought to have full power of legislating by Order in Council. The Act recited (as the Act of 1890 now recites) that by treaty, capitulation, grant, usage, sufferance, and other lawful means Her Majesty hath power and jurisdiction within divers countries and places out of Her Majesty's dominions, and that doubts have arisen how far the exercise of such power and jurisdiction is controlled by and dependent on the law and customs of this realm, and it is expedient that such doubts should be removed. It then declared and enacted, in terms reproduced by the Act of 1890, that it is and shall be lawful for Her Majesty to hold, exercise, and enjoy any power or jurisdiction which Her Majesty now hath, or may at any time hereafter have, within any country or place out of Her Majesty's dominions in the same and as ample a manner as if Her Majesty had acquired such power or jurisdiction by the cession or conquest of territory.' To illustrate the effect of this enactment by a concrete instance, the King has, with respect to the jurisdiction exercisable by him at Shanghai, a place within the territorial limits of the empire of China, the same power as he has in Hong Kong, a British Crown colony outside the territorial limits of China and acquired by cession. Under the Foreign Jurisdiction Act of 1843, and the various Law framed and adminis tered under Foreign Jurisdic tion Acts. Three stages in history of Acts. First stage: application to States under regular Governments. enactments which have been passed for amending and extending it, and which are now embodied in the Consolidation Act of 1890, consular and other judicial officers have been established in all parts of the world where the sovereign Power is non-Christian, and extensive codes of law have been framed for their guidance'. In most cases the law adopted has been the English law, with the necessary modifications and simplifications; but at Zanzibar, which is much resorted to by natives of India, and from officers at which place an appeal is given to the High Court of Bombay, the law applied is the law of British India 2. A similar course was adopted in the Persian Coast and Islands Order in Council, 1889 3. Three stages may be traced in the history of the Foreign Jurisdiction Acts. During the first stage they were applied exclusively to territories under regular Governments to whom consular officers were accredited, and where consular jurisdiction was exercised concurrently by the officers of other European States. Practically they were only applied to non-Christian countries, such as Turkey, Persia, and China. 'Such countries,' as Mr. Westlake has observed, have civilizations differing from European, and, so far as they are not Mahomedan, from those of one another. The Europeans or Americans in them form classes apart, and would not feel safe under the local administration of justice which, even were they assured of its integrity, could not have the machinery necessary for giving adequate protection to the unfamiliar interests arising out of a foreign civilization. They were therefore placed under the jurisdiction of the consuls of their respective States, pursuant to conventions entered into by the latter with the local Governments.' Turkey was the first country to which the Foreign Juris 1 See the Orders in Council printed in vol. v of the Statutory Rules and Orders Revised. * See the Zanzibar Order in Council, 1897. Stat. R. and O. Rev. v. 87. 3 Stat. R. and O. Rev. v. 667. lous diction Acts were applied, and the jurisdiction exercised by AnomaBritish authorities in Turkey is now regulated by the Ottoman position Order in Council, 18991, which extends to all the dominions of Egypt. of the Ottoman Porte, including Egypt. The Anglo-French Convention of 1904 virtually recognized the predominant position of the British Government in Egypt, but Egypt has not become a British protectorate, as Tunis has become a French protectorate, and consequently Egypt is still subject to the régime of the Capitulations. The evils arising out of that régime have been forcibly described by Lord Cromer in his reports on Egypt for the years 1904 and 19052. Egypt, he remarks, stands in the unique position of an oriental country which has assimilated a very considerable portion of European civilization, and which is mainly governed by European methods, but which at the same time possesses no machinery for general legislation, such as is possessed by the various states which, in judicial and administrative matters, it is taking as its model. At present no change can be made in any law applicable to Europeans without the unanimous consent of nearly all the Powers of Europe and the United States of America, and experience shows that it is practically impossible to obtain this consent even in matters of minor importance. So long as legislation is conducted by diplomacy, and so long as fifteen separate powers each possess the right of liberum veto on each new legislative proposal, he regards any attempt to introduce the reforms, of which the country stands so much in need, as practically hopeless. The remedy which he suggests is the creation of a special legislative body, representative of European foreigners in Egypt, and capable of making laws to bind them3. 1 Stat. R. and O. Rev. vol. v. p. 742. When Tunis became a French protectorate it was excluded from the operation of the Ottoman Order in Council then in force. As to the consular courts and jurisdiction in Turkey see Young, Corps de Droit Ottoman, i. 279. 2 Egypt, No. 1 (1905), Cd. 2409; Egypt, No. 1 (1906), Cd. 2817. 3 The capitulations do not apply to the Soudan, which is practically a British protectorate. Second stage: applica After the Foreign Jurisdiction Act had been applied to countries like Turkey, it became necessary to extend the tion to system of foreign jurisdiction to barbarous countries not barbarous countries. under any settled government. By an Act of 1861 (24 & 25 Vict. c. 31)1 the colonial authorities of Sierra Leone were empowered to exercise jurisdiction in the uncivilized territories adjoining that colony. And by an Act of 1863 (26 & 27 Vict. c. 35)1 similar provision was made with respect to territories adjoining the Cape Colony. A more important departure in this stage was marked by the passing of the Pacific Islanders Protection Act of 1875 (38 & 39 Vict. c. 51). By this Act Her Majesty was empowered to create by Order in Council a court of justice with civil, criminal, and admiralty jurisdiction over Her Majesty's subjects within certain islands and places in the Western Pacific, with power to take cognizance of all crimes and offences committed by Her Majesty's subjects within any of those islands and places. Three years later power was given in more general terms to bring places not within the dominions of any settled government under the operation of the Foreign Jurisdiction Acts. By s. 5 of the Foreign Jurisdiction Act, 1878 (41 & 42 Vict. c. 67), now reproduced by s. 2 of the Foreign Jurisdiction Act, 1890, it was enacted that in any country or place out of Her Majesty's dominions in or to which any of Her Majesty's subjects were for the time being resident or resorting, and which was not subject to any Government from whom Her Majesty might obtain power and jurisdiction by treaty, or any of the other means mentioned in the Foreign Jurisdiction Act, 1843, Her Majesty should, by virtue of the Act, have power and jurisdiction over Her Majesty's subjects 2 for the time being resident in or resorting to that country or place, and the same should be deemed to be power and jurisdiction 1 This Act is still in force, but may be revoked or varied by an Order in Council under the Foreign Jurisdiction Act, 1890 (see 53 and 54 Vict. c. 37, s. 17). 2 Note that the jurisdiction under these enactments is expressly confined to British subjects. |