the jurisdiction exercisable by the courts of a protecting State within the territories of a protected State may extend to all or any of the subjects, either of the protecting State or of the protected State, and, subject to certain limitations, to persons not belonging to either of these categories. The extent to which, and the cases in which, the jurisdiction is exercised over particular classes of persons are to be determined by agreement between the State which exercises the jurisdiction and the State within whose territories the jurisdiction is exercised, and, in the absence of express agreement, are to be inferred from usage and from the circumstances of the case.

In connexion with this subject, it may be useful to quote Sir Henry Maine's remarks in his minute on Kathiawar 1 :--

1

'It may perhaps be worth observing that, according to the more precise language of modern publicists, "sovereignty" is divisible, but "independence" is not. Although the expression "partial independence" may be popularly used, it is technically incorrect. Accordingly, there may be found in India every shade and variety of sovereignty, but there is only one independent sovereign, the British Government. My reason for offering a remark which may perhaps appear pedantic is that the Indian Government seems to me to have occasionally exposed itself to misconstruction by admitting or denying the independence of particular States, when, in fact, it meant to speak of their sovereignty.

The mode or degree in which sovereignty is distributed between the British Government and any given Native State is always a question of fact, which has to be separately decided in each case, and to which no general rules apply. In the more considerable instances, there is always some treaty, engagement, or sunnud to guide us to a conclusion, and then the only question which remains is, what has become of the sovereign rights which are not mentioned in the Convention? Did the British Government reserve them to itself, or did it intend to leave the Native Power in the enjoyment of them? In the case of Kattywar the few ambiguous documents which bear on the matter seem to me to point to no certain result, and I consider that the distribution of the sovereignty can only be collected from the de facto relations of these States with the British Government, from the course of action which has been followed by this Government towards them. Though we have to interpret this evidence ourselves, it is in itself perfectly legitimate.

'It appears to me, therefore, that the Kattywar States have been permitted to enjoy several sovereign rights, of which the principal—

1 Minutes by Sir H. S. Maine, No. 22, at p. 37.

and it is a well-known right of sovereignty-is immunity from foreign laws. Their chiefs have also been allowed to exercise (within limits) civil and criminal jurisdiction, and several of them have been in the exercise of a very marked (though minor) sovereign right—the right to coin money. But far the largest part of the sovereignty has obviously resided in practice with the British Government, and among the rights which it has exercised appears to me to be an almost unlimited right of interference for the better order of the States. I mean that, if the interferences which have already taken place be referred to principles, those principles would justify any amount of interposition, so long as we interpose in good faith for the advantage of the chiefs and people of Kattywar, and so long as we do not disturb the only unqualified sovereign right which these States appear to possess the right to immunity from foreign laws 1.'

From what has been said above it will be seen that the powers exercised by the British Government, or by the Government of India as its representative, in territories where lower types of government or civilization prevail, may vary both in nature and in extent between very wide limits. In some places there is merely the exercise of a personal jurisdiction over British subjects, or certain other limited classes of persons. In others the functions of external sovereignty are exercised or controlled. In others, again,

a much larger share of the functions of sovereignty, both external and internal, has been taken over, and this share may be so large as to leave to the previous ruler of the territory. if such there be, nothing more than a bare, nominal, or dormant sovereignty 2.

In dealing with the various positions thus arising, it is important to remember that different considerations will apply according as the position is approached from the point of view of international law, or. from the point of view of municipal law.

1

As to Kathiawar see the two cases decided in 1905 by the Judicial Committee, Hemchand Devchand v. Azam Sakarlal Chhotamlal, and The Taluka of Kotda Sangani v. The State of Gondal, A.C. [1906], p. 212; referred to above, p. 265.

2 A curious illustration of the extent to which the exercise of sovereign rights can be claimed without the claim of territorial sovereignty is supplied by the treaty between the United States and the Republic of Panama with respect to the territory within the 'Canal Zone.'

Where the external sovereignty of any State is exercised or controlled by the British Government, a third State will almost certainly claim to regard, and will, from an international point of view, be entitled to regard, the territory of the first State as being for many purposes practically British. Thus if persons in that territory made it a basis for raids on the territory of an adjoining foreign State, that State would hold the British Government accountable. And it would be no answer to say that the arrangements entered into by the British Government with the ruler of that territory preclude British interference in such cases. The reply would be, We know nothing of these arrangements, except that they debar us from obtaining protection or redress, except through you, and consequently we must treat the territory as practically British.' A similar position would arise if a subject of that foreign State were grossly ill-used within the territory, and were denied justice by the persons exercising authority there.

The view taken by municipal law is widely different. For the purposes of that law a territory must be either British or foreign, that is to say, not British, and a sharp line must be drawn between the two. In some cases it may be a difficult operation to draw this line, but it must be drawn by the courts and by the executive authorities as best they can. To allow the existence of a penumbra between British and non-British territory would cause endless confusion. The judicial and executive authorities must be in a position to say whether, for purposes of municipal law, a particular territory is within or without His Majesty's dominions' or 'British India.' And the legislative authorities must be in a position to determine whether the legislation for such a territory is to be carried out through the ordinary legislative organs, or through the machinery recognized and supported by the Foreign Jurisdiction Acts. Again, important questions of status may turn on the question whether the territory in which a man is born is British territory or not. To deter

Conclu

sions as to extra-territorial

powers of

mine whether a particular territory is British or not, it may be necessary to look not merely to the powers exercised within it, but also to the manner in which, and the understandings on which, those powers have been acquired and are being exercised. Where the acquisition dates from long back, difficult questions may arise. But in the case of recent acquisitions there will usually be no serious difficulty in determining whether what has been acquired is merely a right to exercise certain sovereign powers within a particular tract, or whether there has been such a transfer of sovereignty over the tract as to convert it into British territory.

The general conclusions appear to be :

1. The extra-territorial powers of the Governor-General of India are much wider than the extra-territorial powers of the Governor- Indian Legislature, and are not derived from, though they may be regulated or restricted by, English or Indian Acts.

General.

2. Those powers are exercisable within the territories of all the Native States of India. Whether they are exercisable within the territories of any State outside India is a question which depends on the arrangements in force with the Government of that State, and on the extent to which the powers of the Crown exercisable in pursuance of such arrangements have been delegated to the Governor-General.

3. The jurisdiction exercisable under those powers might be made to extend not only to British subjects and to subjects of the State within which the jurisdiction is exercised, but also to foreigners.

4. The classes of persons and cases to which jurisdiction actually applies depend on the agreement, if any, in force with respect to its exercise, and, in the absence of express agreement, on usage and the circumstances of the case, and may be defined, restricted, or extended accordingly by the instrument regulating the exercise of the jurisdiction.

INDEX