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Persons

over whom

consular jurisdiction is exercisable.

The application to protectorates of the machinery of the Foreign Jurisdiction Acts has brought into greater prominence the question as to the classes of persons with respect to whom the jurisdiction exercised in accordance with those Acts can be or ought to be exercised. The answer to these questions depends upon the nature and origin of the jurisdiction, and on the terms of the instrument by which the jurisdiction is regulated. As the jurisdiction is derived from an arrangement between the British Crown and the territorial sovereign, it clearly can be made exercisable in the case of persons under either of those authorities. But in the territories where it was first exercised, it was required for the protection of foreigners, and was not intended for, and was not exercised in the case of, subjects of the territorial sovereign. The classes of persons for whom it was intended were either British subjects or persons entitled to the political protection of the British Crown. And the Ottoman Order in Council of 1899 (Articles 16-19), like other Orders in Council framed on the same lines, includes British-protected persons in its definition of British subjects (Art. 3) and orders provision for the registration of British subjects as so defined. In the

been loosely treated as synonymous. But the latter term has merely a negative meaning. It implies an engagement between two States, that one of them will abstain from interfering or exercising influence within certain territories, which, as between the contracting parties, are reserved for the operations of the other. Such an engagement does not of itself involve the exercise of any powers or the assumption of any responsibility by either State within the sphere of influence reserved to itself. But the exclusion of interference by one of the States within a particular territory may involve the assumption by the other of some degree of responsibility for the maintenance of order within that territory. Thus a sphere of influence is a possible protectorate, and tends to pass into a protectorate, just as a protectorate tends to pass into complete sovereignty. The chief use of establishing a sphere of influence appears to be to minimize the risk of war arising from scrambles for territory, and to obviate the necessity for effective occupation as a bar to annexation or encroachment by a competent State. But the arrangement on which a sphere of influence' is based has, of itself, no international validity, and is not binding except on such States as are parties to the arrangement. The phrase was invented to meet a transient state of things, and is perhaps tending to become obsolete.

case of the Laconia1, which was between British subjects and Russian subjects in respect of a collision between a British and a Russian ship, it was found by the Judicial Committee of the Privy Council that the Ottoman Government had long acquiesced in allowing the British Government jurisdiction between British subjects and subjects of other Christian States exercised by means of consular courts, and that whilst there was no compulsory power in a British court in Turkey over any but British subjects, a Russian or other foreigner might voluntarily submit to the jurisdiction of such a court with the consent of his sovereign.

quences of

protec

The decision in the Laconia case applied to a state of cir- Consecumstances where there were several Powers exercising extra- establishterritorial jurisdiction in the territories of the same State. ment of It requires modification in its application to the conditions torate. of a protectorate. The assumption of control over the foreign relations, or, to use another expression, over the external sovereignty, of a State implies the assumption of responsibility both for the safety and for the good conduct of foreigners who resort to the territories of the protected State and who are not subjects of the protecting State; that is to say, for matters which, in the case of an independent State, are dealt with by diplomatic intervention. And, except where the local law and administration of justice are in full conformity with European standards, this responsibility cannot be effectively discharged unless the courts of the protecting State exercise jurisdiction over such foreigners.

Conversely, when the protecting State establishes courts with competent jurisdiction and adequate security for the administration of justice in accordance with Western ideas, the necessity for consular courts of other Western Powers disappears. Thus, when France established a protectorate over the regency of Tunis and set up French courts in the regency, the Queen consented to abandon her consular jurisdiction, with a view to British subjects in the regency becom33 Law Journal, N. S., P. M. & A. 11.

1

1 (1863) 2 Moo. P. C., N. S., 161;

Jurisdiction in African protectorates.

ing justiciable by those French courts under the same conditions as French subjects 1.

Accordingly, the assumption of an exclusive protectorate seems to imply the exercise of jurisdiction over foreigners and the exclusion of the jurisdiction of foreign consular courts, and in the opinion of the latest authorities on international law jurisdiction over foreigners is, in such protectorates, legally exercisable under the Foreign Jurisdiction Act2. The mode in which the powers exercisable under the Foreign Jurisdiction Act have been applied to uncivilized regions, and have been gradually extended in their adaptation to protectorates, may be illustrated by the Orders in Council which have at various times been made for different regions in Africa.

3

A comparatively early stage in the process of development is represented by an Order of 1889 under which 'local jurisdictions' could be constituted where necessary. The Order declared that the powers conferred by it within a local jurisdiction was to extend to the persons and matters following, in so far as by treaty, grant, usage, sufferance, or other lawful means Her Majesty had power or authority in relation to such persons and matters, that is to say :

(1) British subjects as defined by the Order;
(2) The property and personal and proprietary rights and
obligations of British subjects within the local juris-
diction (whether such subjects were or were not within
the jurisdiction), including British ships with their boats
and the persons and property on board thereof, or
belonging thereto;

(3) Foreigners, as defined by the Order, who should submit

1 The British consular jurisdiction established in Tunis under the Foreign Jurisdiction Acts was expressly abolished by the Order in Council of December 31, 1883.

2 See e. g. Westlake, p. 187.

3 The Africa Order in Council, 1889. Stat. R. and O. Rev., vol. v. p. 1. This Order and the amending Order of 1892 have been practically superseded by the Orders of 1902 for British Central Africa and British East Africa.

themselves to a court, in accordance with the provisions of the Order;

(4) Foreigners, as defined by the Order, with respect to whom any State, king, chief, or Government, whose subjects, or under whose protection they are, had, by any treaty, as defined by the Order, or otherwise, agreed with Her Majesty for, or consented to, the exercise of power or authority by Her Majesty.

The term ' British subject' was defined as including not only British subjects in the proper sense of the word, but also any persons enjoying Her Majesty's protection and, in particular, subjects of the several princes and States in India in alliance with Her Majesty, residing and being in the parts of Africa mentioned in the Order 1. The term 'foreigner' was defined as meaning a person, whether a native or subject of Africa or not, who was not a British subject within the meaning of the Order.

Whether the Order authorized the exercise of criminal jurisdiction over 'foreigners' seems open to doubt, and the exercise under it of civil jurisdiction in respect of a 'foreigner' was expressly declared to require his specific consent in each case, whilst the court was also empowered to require evidence that no objection was made by the Government whose subject the foreigner was.

These restrictions on the exercise of jurisdiction over foreigners were soon found to be incompatible with the conditions of a protectorate, and accordingly the jurisdiction received a wide extension under the Africa Order in Council, 1892. This Order, after reciting in the usual terms that, by treaty, grant, usage, sufferance, and other lawful means, Her Majesty the Queen had power and jurisdiction in the parts of Africa mentioned in the Order of 1889, went on to recite that

This language is in accordance with the terms of the enactment which is reproduced by s. 15 of the Foreign Jurisdiction Act, 1890, and which was passed before the Interpretation Act, 1889.

'By the general Act of the Conference of Berlin signed in 1885 the several Powers who were parties thereto (in this Order referred to as the Signatory Powers) declared, with respect to occupations in Africa by any of the Signatory Powers, that the establishment of authority in protected territories was an obligation resting upon the respective protecting Powers; and that, in order to the due fulfilment of the said obligations, as respects territories and places within the limits of the Order of 1889, which Her Majesty should have declared to be under the protection of Her Majesty, it was necessary that the subjects of the Signatory Powers, other than Her Majesty, should be justiciable under that order in like manner as British subjects, and that for this purpose the provisions of the Order referring to British subjects should, as far as practicable, be extended to the subjects of those Powers.'

6

It then proceeded to enact that

Where Her Majesty has declared any territory or place within the limits of the Africa Order in Council, 1889, to be a protectorate of Her Majesty, the provisions of that Order having reference to British subjects, except Part XIV thereof1, shall extend in like manner to foreigners to whom this Order applies, and all such foreigners shall be justiciable by the courts constituted by the said Order for the protectorate under the same conditions as British subjects, and to the extent of the jurisdiction vested by law in those courts; and Part XII 2 and so much of the rest of the Order as requires the consent of any foreigner as a condition of the exercise of jurisdiction shall be of no force or effect in the protectorate, so far as respects foreigners to whom this Order applies.'

The Order defined the expression 'foreigners to whom this Order applies as meaning subjects of any of the Signatory Powers, except Her Majesty, or of any other Power which had consented that its subjects should be justiciable under the Africa Order of 1889 and the Order of 1892.

It will be seen that the jurisdiction exercisable under the Orders of 1889 and 1892, though very extensive in its scope, was still personal in its character.

These Orders were framed by the Foreign Office. But in the meantime the Colonial Office had been framing Orders which proceeded on different and bolder lines, and which appear to give jurisdiction in general terms, without distinction between British subjects and foreigners, and without reference to any acquiescence or consent, express or implied. The

1 Part XIV provides for the registration of British subjects.

2 As to civil jurisdiction over foreigners with the consent of themselves or their Governments.

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