Part II. Treaty between United States. Such are the treaties by which the consuls and other commercial agents of one nation are authorized to exercise, over their own countrymen, a jurisdiction within the territory of the State where they reside. The nature and extent of this peculiar jurisdiction depends upon the stipulations of the treaties between the two States. Among Christian nations, it is generally confined to the decision of controversies in civil cases arising between the merchants, seamen, and other subjects of the State in foreign countries; to the registering of wills, contracts, and other instruments executed in presence of the consul; and to the administration of the estates of their fellow-subjects deceased within the territorial limits of the consulate. The resident consuls of the Christian powers in Turkey, the Barbary States, and other Mohammedan countries, exercise both civil and criminal jurisdiction over their countrymen, to the exclusion of the local magistrates and tribunals (r). This jurisdiction is subject, in civil cases, to an appeal to the superior tribunals of their own country. The criminal jurisdiction is usually limited to the infliction of pecuniary penalties, and in offences of a higher grade the consular functions are similar to those of a police magistrate, or juge d'instruction. He collects the documentary and other proofs, and sends them, together with the prisoner, home to his own country for trial (s). By the treaty of peace, amity, and commerce, conChina and the cluded at Wang Hiya, 1844, between the United States and the Chinese Empire, it is stipulated, Art. 21, that "citizens of the United States, who may commit any crime in China, shall be subject to be tried and punished only by the consul, or other public functionary of the United States thereto authorized, according to the laws of the United States." Art. 25. "All questions in (r) See Re Tootal's Trusts, 23 Ch. D. 332; Abd-ul-Messih v. Farra, 13 App. Cas. 431. (8) De Steck, Essai sur les Consuls, sect. vii. §§ 30-40. Pardessus, Droit Commercial, pt. vi. tit. 6, ch. 2, § 2, ch. 4, §§ 1, 2, 3. As to English consuls, see regard to rights, whether of property or of person, Chap. II. arising between citizens of the United States and in China, shall be subject to the jurisdiction, and regulated by the authorities, of their own government. And all controversies occurring in China, between citizens of the United States and the subjects of any other government, shall be regulated by the treaties existing between the United States and such governments respectively, without interference on the part of China” (†). Courts in non § 110a. From a very early time, owing to the total difference of habits and British religious feelings between the Europeans and Asiatics, it was deemed Consular necessary by their respective governments to withdraw Europeans Christian from the authority of the native courts of these States. In process of countries. time, and with the consent, express or implied, of the Turkish Government, a general system of Consular Courts became established throughout the Sultan's dominions. The Ottoman Porte gives to the Christian powers of Europe authority to administer justice to their own subjects according to their own laws, but it does not profess to give, nor could it give, to one such power any jurisdiction over the subjects of another power. 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 (u). This kind of jurisdiction, exercised by the consuls of Christian States in Mohammedan countries, is to be carefully distinguished from the ordinary powers exercised by foreign consuls in Christian States (x). Judicial powers are not necessarily incident to the office of consul. These powers depend altogether upon treaty (y). The numerous Orders in Council and other provisions for regulating the British Consular Courts in Turkey, were repealed and consolidated by an Order in Council, dated August 8th, 1899 (z). The position of British subjects in China is very similar to that they occupy in Turkey, and consular courts are established in those countries with much the same powers as those in Turkey (a). (t) See further Wharton's Digest, Appendix, § 125. (u) The Laconia, 2 Moo. P. C. N. S. 183. (x) Messina v. Petrocochino, L. R. 4 P. C. 158; Dent v. Smith, L. R. 4 Q. B. 445. (y) Dainese v. Hale, 1 Otto, 13; 91 U. S. 13; Mahoney v. U. S., 10 Wall. (z) Hertslet, Commercial Treaties, vol. (a) See Order in Council, 9th March, 1865. Hertslet, Commercial Treaties, vol. xii. p. 281. Phillimore, vol. ii. § 276, p. 314. Re Tootal's Trusts; Abdul-Messih v. Farra, supra. Part II. § 111. Independence of the State as The jurisdiction exercised by England in these Eastern countries is regulated by the Foreign Jurisdiction Act of 1890, which recites that "by treaty, capitulation, grant, usage, sufferance, and other lawful means, Her Majesty hath jurisdiction within divers foreign countries"; and enacts that "Her Majesty may hold, exercise, or enjoy any jurisdiction which Her Majesty now hath or may at any time hereafter have, within a foreign country, in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory " (b). Every sovereign State is independent of to its judicial in the exercise of its judicial power. power. $112. Exceptions. $113. every other This general position must, of course, be qualified by the exceptions to its application arising out of express compact, such as conventions with foreign States, and acts of confederation, by which the State may be united in a league with other States for some common purpose. By the stipulations of these compacts it may part with certain portions of its judicial power, or may modify its exercise with a view to the attainment of the object of the treaty or act of union. Subject to these exceptions, the judicial power of every State is co-extensive with its legislative power. At the same time it does not embrace those cases in which the municipal institutions of another nation operate within the territory. Such are the cases of a foreign sovereign, or his public minister, fleet or army, coming within the territorial limits of another State, which, as already observed, are, in general, exempt from the operation of the local laws. Extent of the I. The judicial power of every independent State, judicial power over criminal then, extends, with the qualifications mentioned,— offences. 1. To the punishment of all offences against the municipal laws of the State, by whomsoever committed, within the territory. 2. To the punishment of all such offences, by whomsoever committed, on board its public and private vessels (b) 53 & 54 Vict. c. 37, s. 1. on the high seas, and on board its public vessels in Chap. II. foreign ports. 3. To the punishment of all such offences by its subjects, wheresoever committed. 4. To the punishment of piracy and other offences against the law of nations, by whomsoever and wheresoever committed. It is evident that a State cannot punish an offence against its municipal laws committed within the territory of another State, unless by its own citizens; nor can it arrest the persons or property of the supposed offender within that territory: but it may arrest its own citizens in a place which is not within the jurisdiction of any other nation, as the high seas, and punish them for offences committed within such a place, or within the territory of a foreign State. By the Common Law of England, which has been adopted, in this respect, in the United States, criminal offences are considered as altogether local, and are justiciable only by the courts of that country where the offence is committed. But this principle is peculiar to the jurisprudence of Great Britain and the United States; and even in these two countries it has been frequently disregarded by the positive legislation of each, in the enactment of statutes, under which offences committed by a subject or citizen, within the territorial limits of a foreign State, have been made punishable in the courts of that country to which the party owes allegiance, and whose laws he is bound to obey. There is some contrariety in the opinions of different public jurists on this question; but the preponderance of their authority is greatly in favour of the jurisdiction of the courts of the offender's country, in such a case, wherever such jurisdiction is expressly conferred upon those courts, by the local laws of that country. This doctrine is also fully confirmed by the international usage and constant legislation of the different States of the European continent, by which crimes in general, or certain specified offences against the municipal code, committed by a Part II. citizen or citizen or subject in a foreign country, are made punishable in the courts of his own (c). The cases in which English Courts have jurisdiction to try offences committed abroad, are exceptions to the general rule that crimes are local. The following are the principal exceptions: Political offences, such as treason (d); administering unlawful oaths, and forging government documents (e). As these acts must necessarily be intended to take effect in the country against which they are devised, they may perhaps not be looked upon as a real exception. But homicide and bigamy (ƒ) abroad are undoubted exceptions, and also certain statutory offences under the Foreign Enlistment Act, the Commissioners for Oaths Act, 1889, and the Explosive Substances Act, 1883 (g). A British subject who commits murder or manslaughter abroad on land, whether within the King's dominions or without, and whether he kills a British subject or not, can be tried in England or Ireland wherever he may be apprehended. This is not to prevent his being tried elsewhere (h). Offences against property or person committed at any place, ashore or afloat, out of His Majesty's dominions, by any master, seaman or apprentice, who, at the time when the offence is committed, or within three months previously, has been employed in any British ship, may be tried in England (¿). Laws of trade and navigation cannot affect foreigners, beyond the territorial limits of the State, but they are binding upon its citizens, wherever they may be. Thus, offences against the laws of a State, prohibiting or regulating any particular traffic, may be punished by its tribunals, when committed by its citizens, in whatever place; but if committed by foreigners, such offences can only be thus punished when committed within the territory of the State, or on board of its vessels, in some place not within the jurisdiction of any other State. The public jurists are divided upon the question, how far a sovereign State is obliged to deliver up persons, (c) Fœlix, Droit International Privé, §§ 510-532. See American Jurist, vol. xxii. pp. 381-386. (d) 35 Henry VIII. c. 2. See Sir James Stephen's Digest of Criminal Law as to what is treason, ch. vi.; and R. v. Lynch, (1903) 1 K. B. 444. (e) 52 Geo. III. c. 104, s. 7. Wharton, Conflict of Laws, § 916. (f) 24 & 25 Vict. c. 100, s. 57. (g) 17 & 18 Vict. c. 104, s. 267 (the Merchant Shipping Act, extended by 53 & 54 Vict. c. 37, Foreign Jurisdiction Act); and see 33 & 34 Vict. c. 90, s. 4 (Foreign Enlistment Act), 46 Vict. c. 3 (The Explosive Substances Act), and 52 Vict. c. 10 (The Commissioners for Oaths Act). (h) 24 & 25 Vict. c. 100, s. 9. |