Questions as to effect of German charter.

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 com-
mercial or other purposes.1

As to the legal and international effects of this charter and
of the later imperial Act of April, 1886, by which the 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has apparently been superseded, many questions have been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 settle-
ments 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.

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.

T

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 'Schutzgebiet.' 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 Questions 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 sovereignty ?1 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.

1 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. 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. 405. The terms 'protectorate' and 'sphere of influence' have sometimes

Persons

over

whom

jurisdiction is exercis. able.

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 chiet 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.