CHAPTER XIX.

EXCEPTIONS TO THE TERRITORIAL RIGHT OF JURISDICTION.

CCCXXXVI. WE have now to consider certain exceptions to the sound and important rule laid down in the last chapter, which is built upon the maxim of the Roman Law, "extra territorium jus dicenti impune non paretur" (a).

The First class of exceptions to this rule is founded upon long usage and the reason of the thing, and relates principally to the status of Christians in Infidel countries.

So early, indeed, as the sixth century, a derogation from the rule of European International Law began to develop itself.

After the fall of the Eastern Empire, the Code of the Visigoths, not the least remarkable monument of the Middle Ages, conceded to foreign merchants the privilege of being tried by judges selected from among their own countrymen (b). But after the Ottoman Power became established in Europe, Christian nations trading with the territories subject to that Power, obtained from it, at different periods,

(a) Dig. ii. t. 1, 20.

(b) Miltitz, Manuel des Consuls, i. 1. i. ch. iv. s. 2, p. 161, 1. ii. ch. i. s. 1, p. 4, n. 2.

"Dum transmarini negotiatores inter se causam haberent nullus de sedibus nostris eos audire præsumat, nisi tantummodo suis legibus audiantur apud telonarios suos." These Telonari were in fact Prætores Peregrini.

Montesquieu, Esp. des Lois, 1. xxi. ch. 19.

Amasis (579 B. c.) is said to have permitted the Greeks established at Naucratis in Egypt to choose magistrates from their own nation for the decision of disputes among themselves (Herod. ii. 179).

a concession of exclusive authority over their own subjects, nearly identical with that which the Christian jus commune (c) had conceded to foreign ships of war in their ports.

The vital and ineradicable differences (d) which must always separate the Christian from the Mohammedan or Infidel, the immiscible character which their religion impresses upon their social habits, moral sentiments, and political institutions, necessitated a departure from the strict rule of Territorial Jurisdiction, in the case of Christians who founded commercial establishments in Ottoman or Infidel dominions.

With reference to this subject, however, it was observed by their Lordships of the Privy Council that, "though "the Ottoman Porte could give, and has given, to the "Christian Powers of Europe authority to administer "justice to their own subjects according to their own laws, "it neither has professed to give, nor could give, to one such "Power any Jurisdiction over the subjects of another Power. "But it has left those Powers at liberty to deal with each "other as they may think fit, and if the subjects of one country desire to resort to the tribunals of another, there "can be no objection to their doing so, with the consent of "their own Sovereign, and that of the Sovereign to whose "tribunals they resort.

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"There is no compulsory power in an English Court in Turkey over any but English subjects; but a Russian or "any other foreigner may, if he pleases, voluntarily resort "to it with the consent of his Sovereign, and thereby submit "himself to its jurisdiction" (e).

(c) See this phrase frequently in the letters of Sir L. Jenkins, which contain responsa upon questions of Public and International Law.-Life, vol. ii. pp. 719-20.

(d) Vide supra, p. 87.

Vide post, vol. ii. part vii. ch. 5. "Consuls in the Levant-in China." (e) The Laconia, 2 Moore, P. C. Rep. N. S. p. 185 (1864).

The peculiar character of the British settlement in India, as distinguished from the ordinary case of the occupation of a barbarous country by Europeans, is clearly stated in the following judgment of the same tribunal :-"Where Englishmen establish themselves in an uninhabited

CCCXXXVII. France, as early as the beginning of the sixteenth century, stipulated that her subjects throughout those districts, generally known as the Echelles du Levant, should be exclusively justiciable in criminal and civil matters before their own tribunals, and according to their own laws (ƒ); and this privilege has been continued by a series of subsequent capitulations or diplomas of concession.

or barbarous country, they carry with them not only the laws, but the sovereignty of their own State; and those who live amongst them, and become members of their community, become also partakers of, and subject to, the same laws.

"But this was not the nature of the first settlement made in India-it was a settlement made by a few foreigners for the purpose of trade in a very populous and highly civilized country, under the government of a powerful Mahometan ruler, with whose sovereignty the English Crown never attempted nor pretended to interfere for some centuries afterwards. "If the settlement had been made in a Christian country of Europe, the settlers would have become subject to the laws of the country in which they settled. It is true that in India they retained their own laws for their own government within the factories which they were permitted by the ruling powers of India to establish; but this was not on the ground of general international law, or because the Crown of England or the laws of England had any proper authority in India, but upon the principles explained by Lord Stowell in a very celebrated and beautiful passage in the case of The Indian Chief (3 Rob. Adm. Rep. p. 28).

"The laws and usages of Eastern countries, where Christianity does not prevail, are so at variance with all the principles, feelings, and habits of European Christians, that they have usually been allowed by the indulgence or weakness of the potentates of those countries to retain the use of their own laws, and their factories have for many purposes been treated as part of the territory of the sovereign from whose dominions they come. But the permission to use their own laws by European settlers does not extend those laws to natives within the same limits, who remain to all intents and purposes subjects of their own sovereign, and to whom European laws and usages are as little suited as the laws of the Mahometans and Hindoos are suited to Europeans. These principles are too clear to require any authority to support them, but they are recognized in the judgment to which we have above referred."

Adv.-Gen. of Bengal v. R. S. Dossee, 2 Moore, P. C. Rep. N. S. pp. 59, 60 (1863).

See also Dent v. Smith L. R. 4 Q. B. 414 (1869). Messina v. Petrococchino L. R. 4 P. C. p. 144 (1872).

(f) Ortolan, Dipl. de la Mer, t. i. pp. 311-14.

CCCXXXVIII. The concessions by the Porte to the British Crown (g) began in the reign of Queen Elizabeth. A Treaty in 1675 (Art. 18) recited that British enjoyed the same privilege as French, Venetian, and other subjects. Orders of Council (h) and Acts of Parliament (i) have, at different times, prescribed the manner in which the Crown shall exercise this jurisdiction.

The Foreign Jurisdiction Act, 1843 (6 & 7 Vict. c. 94) enables her Majesty to exercise any power or jurisdiction which she now has, or hereafter may have, within any country out of her dominions, in the same manner as if she had acquired such power and jurisdiction by the cession or conquest of territory. The legislation on this subject has been continued by a series of statutes, the latest of which is the Foreign Jurisdiction Act, 1878 (41 & 42 Vict. c. 67).

Generally (j), it may be said, that the Consuls of Christian Powers residing in Turkey, and the Mohammedan countries of the Levant, exercise an exclusive criminal and civil jurisdiction over their fellow-countrymen. The criminal Jurisdiction is usually limited to the infliction of a pecuniary fine; in graver cases, the Consul exercises the functions of a juge d'instruction, collecting evidences of the crimes, and transmitting them to the tribunals of their own country (k).

CCCXXXVIIIA.-The peculiar rights of the subjects of Christian Powers in the Ottoman dominions are founded not only upon Treaties between separate Christian States and the Porte, but upon what are called the Capitulations. "The so-called Capitulations and Articles of Peace be

(g) Miltitz, t. ii. 779, &c. (l. iii. c. 1, s. v. par. 29).

(h) Hertslet's Treaties, vol. vi., Orders in 1830, 1839, 1843.

(i) 6 & 7 Wm. IV. c. 78; 6 & 7 Vict. c. 94; 28 & 29 Vict. c. 116; 29 & 30 Vict. c. 87; 38 & 39 Vict. c. 85; 41 & 42 Vict. c. 67. (j) Wheaton, Elém. i. 136.

(k) The laborious and valuable work of Miltitz, cited above, contains a mine of historical information upon this subject.

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"tween Great Britain and the Ottoman Porte date back to a very early period; but they have been augmented and "altered at different times, and bear the date of 1675. They were confirmed by the Treaty of Peace concluded at the Dardanelles on January 5, 1809; by the Conven"tion of August 16, 1838; and by Article I. of the Treaty "of April 29, 1861, with the exception of those clauses "which it was declared to be the object of those Treaties to " modify" (1).

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These Treaties and Capitulations are carried into effect, so far as England is concerned, by means of Orders in Council, and the establishment of Consular Courts in the Ottoman dominions and in Heathen civilized countries. It is to be observed that latterly Egypt has been practically treated as an independent State with respect to this anomalous jurisdiction; and that special agreements on the subject have been made with her.

The Orders in Council for the regulation of Consular jurisdiction in the dominions of the Sublime Ottoman Porte are dated December 12, 1873; July 7, 1874; May 13, 1875; October 26, 1875; February 5, 1876 (m). By these Orders in Council a Supreme Consular Court is established at Constantinople, and Provincial Consular Courts are created, with rules for the exercise of Civil and Criminal Jurisdiction.

CCCXXXVIIIB. With respect to Egypt, by an Order in Council of February 5, 1876, it is provided as follows:"Whereas her Majesty the Queen has power and juris"diction within that part of the dominions of the Sublime "Ottoman Porte called Egypt:

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"And whereas, with the concurrence of her Majesty, Egyptian Courts have been or are about to be established "as follows; (namely,) three Courts of First Instance at

(1) Hertslet's Treaties between Turkey and Great Britain (1875). (m) London: Harrison & Sons, printers to her Majesty, St. Martin's Lane.