subjects, and in criminal cases where the defendant is a CH. VIII. British subject. It provides for the recovery in the consular court of certain taxes due to the Moorish Government by British subjects and for the punishment of smuggling.

The Order for Siam extends to foreigners whose Governments Siam. have consented to the exercise of power by His Majesty. It also makes penal certain acts by British subjects, and, like the Persian Order, gives the consul-general power to legislate for British subjects resident in or resorting to Siam.

Corea.

For China and Corea there is a Supreme Court, with a chief China and justice and an assistant judge, who sit at Shanghai. These judges are all appointed by the King under Royal Sign Manual, and must be members of seven years' standing of the Bar of England, Scotland, or Ireland.

The King's Minister in China can legislate for the government of British subjects in or resorting to China 1.

In Corea the consul-general holds the court, subject to an appeal to the Supreme Court for China and Corea.

The consular jurisdiction formerly exercised in Japan has Japan. recently come to an end, in pursuance of the treaty of July 16, 18942, and the British Crown has now no more jurisdiction over British subjects in Japan than in any European state.

A curious result of the foreign jurisdiction formerly exercised in Japan occurred recently. In 1892 a collision occurred in Japanese waters between the Chishima, an imperial Japanese cruiser, and the Ravenna, belonging to the British P. and O. Steam Navigation Company. The Japanese Government sued the company in the consular court to recover damages. The company counterclaimed against the Government, and urged that as the Government had submitted to the jurisdiction of the court, the court had jurisdiction to try the claim of the company against

1 Cp. power of King in Council to legislate for British subjects in China or at sea within 100 miles of China, 53 & 54 Vict. c. 37, s. 14, re-enacting 6 & 7 Vict. c. 80; 41 & 42 Vict. c. 67.

* See the Orders in Council of Oct. 7, 1899, and March 3, 1900.

CH. VIII. the Government. But the Judicial Committee held that the treaty gave no jurisdiction in any claim against a Japanese subject, to say nothing of the Government, and that the Government could not be said to have submitted to the jurisdiction because, having surrendered by treaty the right to try a claim against a British subject, they had no option but to sue the company in the British court 1.

1 Imperial Japanese Govt. v. P. & 0. Co., L. R. [1895]. A. C. 644. The judgement observes that the Order in Council could not confer on the British court a wider jurisdiction than is given by the treaty, but possibly the court might be bound to conform to the Order and leave the party to a diplomatic remedy; also that the Order prescribes how the jurisdiction is to be exercised, but what jurisdiction the court possesses must be determined ab extra.

CHAPTER IX

JURISDICTION IN BRITISH PROTECTORATES AND THE

POSITION OF FOREIGN SUBJECTS IN THEM

Definition

A BRITISH protectorate is a country which is not within CH. IX. the British dominions, but as regards its foreign relations is under the exclusive control of the King, so that its govern- of British ment cannot hold direct communication with any other foreign protecpower, nor a foreign power with that government1.

The British Crown, either by treaty, by sufferance, or by force, assumes over a defined territory a protectorate in this sense, and thus excludes the government of the protected territory from making treaties with other foreign powers, or declaring peace or war with them, or receiving ambassadors or consuls from them; whilst, on the other hand, the Crown undertakes to protect the inhabitants of the territory from interference by any foreign power.

In other respects the powers of the Crown over the pro

1 See Sir H. Maine, quoted below, p. 167, and Sir Travers Twiss, Law of Nations, ed. 1884, §§ 25, 26: 'There are exceptional instances in which the communications of an independent state with foreign powers are carried on through the medium of a third power, which has been acknowledged by public treaties as the authorized organ of such communications. In certain of these cases the intermediate power has been recognized by foreign states as exercising a protection over the weaker state, and has been acknowledged in terms as the protecting power. In the case of protected states, which are not members of the family of nations, the relations between them and the protecting power are for the most part founded upon some compact between them; but as the protected state does not maintain any relations whatever with foreign powers, it is virtually a dependency of the protecting power, being distinguished from ordinary dependencies in this respect, that its rights are secured and its obligations limited by compact.'

torate.

CH. IX. tected territory vary with the different cases, but in every case the territory is, as respects internal sovereignty1, left more or less under an independent government.

Effect of exclusion of external relations.

By the exclusion of external relations with foreign powers, the protector is held according to international law to assume the external sovereignty of the protected territory, and the territory becomes what is termed by international writers a semi-sovereign state, or, as Sir T. Twiss prefers to call it, a protected independent state' 2.

Sir Henry Maine says 3 :-'It is necessary to the Austinian theory that the all-powerful portion of the community which makes laws should not be divisible, that it should not share its power with anybody else, and Austin himself speaks with some contempt of the semi-sovereign or demi-sovereign states which are recognized by the classical writers on international law. But this indivisibility of sovereignty, though it belongs to Austin's system, does not belong to international law. The powers of sovereigns are a bundle or collection of powers, and they may be separated one from another. Thus a ruler may administer civil and criminal justice, may make laws for his subjects and for his territory, may exercise power over

1 The division of sovereignty into internal and external is a convenient form of expression, and seems well established in international law. External sovereignty means 'the independence of one political society in respect to all other political societies,' the mark of which is complete liberty of action in its relation with other states, i. e. power independently of any other state to make peace or war with, receive embassies from, and conclude treaties with other states.

Internal sovereignty means the sovereignty 'which is inherent in the people of any state or vested in its ruler by its municipal constitution,' and the marks of it are power to organize its life in its own way and to have its own legislature and judiciary. Wheaton, § 5, pp. 35, 36; Hall, International Law, pp. 50, 51; Calvo, Le droit international théorique et pratique (Paris, 1880-1), §§ 39-41, 104, 106, 734.

2 The recognition of these semi-sovereign states seems universal. See, as respects the United Kingdom, Phillimore, Int. Law, vol. i. p. 94 seq.; Hall, Int. Law, §§ 3, 4, pp. 24, 25; as respects United States, Wheaton, § 13, p. 59; Halleck, ch. iii. § 17, p. 65; as respects France, Calvo, §§ 41, 62, 734; as respects Germany, Heffter, transl. by Bergson, 1866, §§ 18, 19; and Bluntschli, transl. by Lardy, 1881, § 78.

3 International Law (1888), p. 58.

life and death, and may levy taxes and dues, but nevertheless CH. IX. he may be debarred from making war and peace, and from having foreign relations with any authority outside his territory. This, in point of fact, is the exact condition of the native princes of India; and states of this kind are at the present moment rising in all the more barbarous portions of the world. In the protectorates which Germany, France, Italy, and Spain have established in the Australasian seas, and on the coast of Africa, there is no attempt made to annex the land, or to found a colony in the old sense of the word, but the local tribes are forbidden all foreign relations except those permitted by the protecting state.'

sovereign

The instances given by writers on international law of Instances semi-sovereign states are all in Europe or bordered by the of semiMediterranean Sea, with the exception of the Indians in the states. United States of America. In two well-known cases the Supreme Court decided that a tribe of Indians had remained an independent state under the protection of the United States, by virtue of treaties entered into originally with the British Government, and subsequently with the United States 1

Since the Ionian Islands became part of the kingdom of Greece in 1863, there has not been any case of a civilized, or one should rather say a Christian, state under British protection; and all the protectorates which are now of so much importance, whether under the protection of the United Kingdom or of other states, are non-Christian.

law.

Writers on international law never worked out the result Protectorates and of a state being protected or semi-sovereign, even where it internawas Christian, and they did not until recently even notice tiona. the position of a protected non-Christian state. This position, though unrecognized by international law writers and indeed by every foreign power except Spain and Holland, had been worked out in practice in India to a large extent

1 Wheaton (ed. 1863), § 14, p. 68. Sir T. Twiss, however, refers to the native states of India (Law of Nations, ed. 1884, § 26).