had by Her Majesty therein within the Foreign Jurisdiction Act, 1843.

may

tion to

An important stage was reached when the Foreign Juris- Third stage: diction Acts were applied to protectorates. In territories to applicawhich the Pacific Islanders Protection Act applies, such as protecSamoa, British officers and French or German officers torates. be exercising jurisdiction side by side. But in their third stage the Foreign Jurisdiction Acts have been applied to certain territories in Africa which are under the exclusive protectorate of England in this sense, that their chiefs are debarred from entertaining diplomatic relations with any other European Power, and that consequently such extra-territorial jurisdiction as is exercised within the territories is monopolized by officers of the British Government instead of being exercised by them concurrently with officers of other European States. The term 'protectorate' acquired international recognition Recogniin the proceedings of the Berlin Conference of 1885, when African it was stipulated (by Art. 34 of the Acte Général) that any protecPower which might thereafter either acquire possession of by Berlin or assume a protectorate over, any territory on the coast of Africa, should notify the same to the other signatory Powers, in order to give them an opportunity of putting forward any claim to which they might conceive themselves entitled. This stipulation did not apply to annexations or protectorates in the interior 1.

tion of

torates

Confer

ence.

German

tion

Immediately after the signature of the general Act of Charter to Berlin, the Emperor William granted to the German Coloniza- Colonization Society in East Africa a charter of protection, in which Society. he spoke of territories which by certain traders had been ceded to him for the German Colonization Society, with 'territorial superiority 2,' and granted to the society, on

1 The general Act of Berlin is to be found in Hertslet, Map of Africa by Treaty, i. 20. There are several references to protectorates in other articles of the Act of Berlin, and also in the subsequent Brussels Act with respect to the African Slave Trade, Hertslet, i. 48.

2 The word used in the charter is Landeshoheit,' and is translated in Hertslet's Map of Africa by Treaty as 'sovereign rights.'

Questions as to effect

certain conditions, the authority to exercise all rights arising from their treaties, including that of jurisdiction over both the natives and the subjects of Germany and of other nations established in those territories, or sojourning there for commercial or other purposes 1.

As to the legal and international effects of this charter and of German of the later imperial Act of April, 1886, by which the charter

charter.

has apparently been superseded, many questions have been raised by writers on international law both in this country and on the Continent 2. Have the territories to which they apply become German territory in a sense which imports all the rights and responsibilities of territorial sovereignty? Or are they merely subject to a German protectorate, implying a lesser degree of sovereignty and responsibility?

In considering these questions it must be borne in mind that Germany had in 1886 practically no colonial experience. England, with her vast system of colonies and dependencies, and with her factories and mercantile establishments in every part of the world, is familiar with the several distinctions for legislative, judicial, and executive purposes between the British dominions as a whole and the places outside the British dominions in which British jurisdiction is exercised; between the United Kingdom and the colonies and dependencies which, with the United Kingdom, make up the British Empire, and are sometimes described collectively in Acts of Parliament as British possessions; and lastly, between the several classes of British possessions; and with the mode in which, extent to which, and conditions under which imperial authority may be exercised in places belonging to each of these categories. Germany, when the present empire was formed, had no colonies, and few important mercantile settlements in foreign countries, and the constitution of the empire contained no provision for the mode in which authority was 1 Hertslet, Map of Africa by Treaty, i. 303.

2 See e.g. Hall, Foreign Jurisdiction of the British Crown, part iii. chap. 3; Westlake, Chapters on the Principles of International Law, p. 177; Despagnet, Essai sur les Protectorats, chap. iii.

to be exercised in any possessions or colonies which might subsequently be acquired. Hence the antithesis which was most present to the minds of German statesmen and jurists was that between their home or European territories-the Reichsgebiet proper and their new acquisitions beyond the seas; and the tendency was to distinguish these latter by the collective name of protected territory, or 'Schützgebiet.' It was not unnatural that this appellation should appear inconveniently indefinite, and that more precise information should have been desiderated as to the category in which these territories ought to be placed; as to whether they were or were not to be treated, for international purposes, as German territory; as to whether the natives were or were not German subjects; and generally as to the nature and extent of the rights claimed and responsibilities assumed by the German sovereign within these regions. African protectorates are still in a transitional and experimental stage, and it is not always easy to give a precise answer to questions of this kind. The German Protectorate in East Africa, with its double government by the Imperial Crown and by a chartered company, was a political experiment resembling in its nature, and perhaps consciously modelled on, the earlier form of British rule in India. The vagueness of language of the German charter and Act finds a close parallel in the vagueness of language of the English regulating Act of 1773, and this vagueness is probably attributable in each case to the same causes. As Sir James Stephen has remarked 1, the authors of the Regulating Act 'wished that the King of England should act as the sovereign of Bengal, but they did not wish to proclaim him to be so.'

as to

The questions which were raised with reference to the Ques German protectorate claimed in 1885 may be raised, and English have been raised, with reference to the English protectorates protecestablished in various parts of Africa over regions occupied Africa. by uncivilized tribes. The term 'protectorate,' it has been

1 Nuncomar and Impey, ii. 129.

torates in

observed, implies a protecting State and a protected State. How can it be applied to uncivilized regions where there is no organized State to protect? In what respects does a protectorate of this kind, where all the effective powers of sovereignty are exercised by the protecting State, differ from territorial sovereignty1? The tenuity of the distinction between a protectorate of this kind and territorial sovereignty was well illustrated by the Jameson case of 1896. In that case the expedition started from two points, one of which, Mafeking, was within the boundaries of the Cape Colony, and therefore clearly within British territory, whilst the other, Pitsani Pitslogo, was within the Bechuanaland Protectorate. The Lord Chief Justice, in charging the jury 2, intimated clearly that in his opinion the latter of these places, as well as the former, must, at all events for the purposes of the Act under which the indictment was framed (the Foreign Enlistment Act, 1870, 33 & 34 Vict. c. 90, s. 11), be treated as if it were within the limits of Her Majesty's dominions.

The following are illustrative specimens of treaties made with native chiefs in Africa :

[name of chief] hereby declares that he has placed himself and all his territories, countries, peoples, and subjects under the protection, rule, and government of the Imperial British East Africa Company, and has ceded to the said Company all its [qu. his] sovereign rights and rights of government over all his territories, countries, peoples, and subjects, in consideration of the said Company granting the protection of the said Company to him, his territories, countries, peoples, and subjects, and extending to them the benefit of the rule and government of the said Company. And he undertakes to hoist and recognize the flag of the said Company.' Hertslet, Map of Africa by Treaty, i. 166..

'We, the undersigned Sub-Chiefs, . . . acting for and on behalf of the Wanyassa people living within [specified limits], most earnestly beseech Her Most Gracious Majesty the Queen of Great Britain and Ireland . . . to take our country, ourselves, and our peoples under her special protection, we solemnly pledging and binding ourselves and our peoples to observe the following conditions :

:

1. That we give, over all our country within the above-described limits, all sovereign rights, and all and every other claim absolutely, and without any reservation whatever, to Her Most Gracious Majesty the Queen [&c.] for all time coming.' Hertslet, i. 188.

It is difficult to see what residuum of sovereignty remains after these

cessions.

2 Times, July 29, 1896.

And this might, perhaps, reasonably be held, for the nature of the sovereignty exercised by the British Crown within the protectorate was such that the British Crown and its agents and officers could, whilst a protected native chief could not, prevent an aggression from the protectorate into neighbouring territory, and consequently such an aggression was within the mischief of the Act 1. It must be remembered, however, that the points of law arising in the Jameson case were not fully argued, and that the language of a charge to the jury cannot always be construed with the same strictness as the language of a judgement. The law was laid down in the Jameson case with reference to the construction of a particular statute, and the propositions embodied in the chief justice's charge must not receive too wide an application. It seems clear that for ordinary purposes the territory of a protectorate is foreign and not British territory. If this were not so, orders for establishing and regulating the jurisdiction exercisable within it by British authorities could not be made under the Foreign Jurisdiction Act. Perhaps it would be accurate to say that for the purposes of municipal law the territory of the Bechuanaland Protectorate is not, but for the purposes of international law must be treated as if it were, part of the British dominions. The line of division is thin, but it exists, and it has its utility. If the objection is raised that protectorates of this kind are inconsistent with previously received rules and formulae of international law, the answer is that they have been found by practical experience to provide a convenient halfway house between complete annexation and complete abstinence from interference; that international law is an understanding between civilized nations with respect to the rules applicable to certain existing facts ; that it is in a state of constant growth and development; and that when new facts make their appearance the appropriate rules and formulae will speedily be devised 2.

1 See the Order in Council as to jurisdiction in the protectorate, below, p. 37 5. The terms protectorate' and 'sphere of influence' have sometimes Bb

ILBERT