In Greece special magistrates xenodikai (a general term, for which special names were substituted in different localities), were instituted for trying questions in which foreigners were involved. Sometimes such magistrates were appointed on the initiative of the particular national government in question, sometimes provisions were arranged to that effect by means of special conventions between States. In some cases these judges exercised full judicial power in pronouncing decisions as to the matters in dispute, in others they appear to have merely investigated the points at issue, and submitted their results to the ordinary magistrates who were to deliver the final verdict [10].
The writer goes on to enumerate instances of such special judges, all of which go to prove the immiscibility of the alien in the ancient world, so far as his judicial status was concerned.
Somewhat like the xenodikai
in Greece was the Roman magistrate, praetor peregrinus, whose influence
on the development of international law is universally recognized. The
name of this officer, as it appears in the present form, is, according
to Mommsen, an incorrect one, deriving its popularity from mere usage.
The full title of the Roman magistrate designated by the abbreviated form
prator peregrinus was, under the Republic, praetor qui inter
peregrinos jus dicit, and under the Empire, praetor qui inter cives
et peregrinos jus dicit [11]. The office was established about 242
B. C, in addition to that of the praetor urbanus, which was already
in existence. The competence of the peregrine praetor, as his full
title suggests, extended to disputes between peregrines and between them
and Roman citizens [12]. The connotation of the word peregrini is
described by Girard as follows:
The peregrines, peregrini,
formerly hostes, were not, in developed Roman law, true foreigners. The most ancient of them were certainly foreigners bound to Rome by treaties. But the development of the Roman power made them, like the others, members of the Roman State. They were subjects of Rome, the free inhabitants of the empire, who were neither citizens nor Latins [13].
Outside of the peregrines, the foreigners who did not maintain treaty relations with Rome enjoyed no legal protection and were not amenable to Roman justice [14]. It was the peregrines who were placed under the jurisdiction of the praetor peregrinis,
and it was to them that he administered the jus gentium, for even
the foreigners of allied nationality, who later became subjects of the
Roman State, were not amenable to the jus civile, which was applicable to a very restricted number of Roman citizens and Latins [15]. With the extension of Roman citizenship to all the provincials of the Empire under Caracalla, in 212 A. D., however, the office of the praetor peregrinus
disappeared from the judicial system of Rome [16].
It is true that the praetor
peregrinus of Roman times was merely a Roman officer administering
the jus gentium, which was municipal law, to foreigners resident
in Rome, and that his competence bears little or no resemblance to the
modern system of extraterritoriality, under which the consul or other authority
invested with the exercise of the jurisdiction, is appointed by the State
which he represents and administers his national law. But the fact that
the Romans made a discrimination against the subjects of non-treaty Powers
and that even those of the treaty Powers were subjected to a special jurisdiction
serves to show the extra-legal status of the foreigner in ancient times,
out of which most probably extraterritoriality drew its impetus in its
early development.
The germs of extraterritoriality were, however, not entirely absent in the Roman Empire. In the first century of the Christian era, Emperor Claudius (41-54, A.D.) accorded to the merchants of Cadiz the privilege of choosing magistrates, who were given the jurisdiction of the tribunals established by Caesar in Baetice [17]. Under the rule of Justinian (483-565, A.D.), the Armenians were granted the benefit of the same laws on certain subjects as those by which the Romans were ruled; but questions of marriage, succession to property, and personal status generally, were left to be settled either by the Armenians themselves or by a magistrate named by the Emperor to administer Armenian law [18].
II. THE
MEDIAEVAL THEORY OF THE PERSONALITY OF LAWS (^)
In the absence of any views of territorial sovereignty, there developed in mediaeval Europe a complete system of personal jurisdiction, which has left in its wake many interesting survivals extending to modern times, and which has undoubtedly exercised an immense influence upon the development of extraterritoriality. In the days, which followed the downfall of the Roman Empire, as in the days of ancient Greece and Rome, but in a much more marked degree, racial consanguinity was treated as the sole basis of amenability to law. Thus, in the same country - and even in the same city at times - the Lombards lived under Lombard law, and the Romans under Roman law. This differentiation of laws extended even to the various, branches of the Germanic invaders; the Goths, the Franks, the Burgundians, each submitted to their own laws while resident in the same country. Indeed, the system was so general that in one of the tracts of the Bishop Agobard, it is said: "It often happens that five men, each under a different law, would be found walking or sitting together" [19].
As an example of the prevalence
in mediaeval Europe of the theory of the personality of laws, we may cite
the retention of Roman Law in the old provinces of Rome. Savigny shows
that in the Burgundian laws and in the Constitution of Chlotar, the validity
of Roman law in cases involving Romans was fully recognized [20].
In the same way, the principle of the personality of laws was applied and carried out by the invaders themselves in their relations with one another. The laws of the Visigoths contain the remarkable provision that "when foreign merchants have disputes with one another, none of our judges shall take cognizance, but they shall be decided by officers of their nation and according to their laws" [21].
Theodoric the Great (493-525),
the first of the Ostrogothic rulers, instituted special judges or courts
(comtes) to decide litigations between Goths and, with the assistance of a Roman jurisconsult, to decide cases between Goths and Romans [22]. In the first half of the eighth century, the Lombards in France were tried according to Lombard law and at least partly by judges who were Alamanns, the latter having once been Lombards and lived under Lombard law [23]. The oldest part of the Lex Ribuaria (tit. 31) is found to contain a passage which ensures to the Frank, Burgundian, Alamann or any other, the benefit of his own law [24]. In the Capitularies of Charlemagne and of Louis I, recognition was given to the applicability of Roman and other foreign laws to cases involving the respective foreign subjects [25].
It is noteworthy that under the régime of personal jurisdiction, the law applied was that of the defendant, except in cases of serious crime, in which the law of the injured party or plaintiff prevailed [26]. A connection might be established between this rule and the principle actor sequitur forum rei, one
of the basic formulae of modern extraterritorial jurisdiction, under which
the plaintiff follows the defendant into his court.
III.
EARLY MARITIME CODES OF EUROPE (^)
In the maritime codes of the European cities in the Middle Ages, the influence of the principle of the personality of laws was clearly discernible. It is said that one of the cardinal principles of the celebrated Hanseatic League was the absolute independence of its members of all foreign jurisdiction wherever they resided and traded [27]. In the twelfth century, Lübeck enjoyed such exemption in Wisby, and acquired the right to transfer the privilege to other cities [28]. From about the same time, the German merchants and other inhabitants of Wisby on the island of Gothland in the Baltic enjoyed similar privileges in the Republic of Novgorod in Russia [29].
In the Statute of Gaeta, M. Pardessus finds a chapter on foreign consuls, which he dates back to the thirteenth century, where it is laid down that foreign consuls had sole jurisdiction over their nationals in all civil cases, and that their competence in such cases could not be transferred to any other authority [30].
That the Amalfitan Tables provided for extraterritorial jurisdiction is evidenced by the fact that as early as 1190 the city of Amalfi was permitted to maintain consuls in the neighboring town of Naples to decide disputes between Amalfitan merchants [31]. Even in the fourteenth century, the maritime statute of Ancona, which bore the date of 1397, required all merchants of Ancona trading abroad to elect their own consuls and to submit to them their disputes, the penalty for resorting to any other tribunal being a fine of fifty Pounds [32].
Finally, in 1402, a Florentine consul resided at London. The statutes of that consulate, collected and approved in 1513, provided that the consul, assisted by two counsellors, should decide all contests between the subjects of the republic resident in England; those who resorted to any other court were liable to a pecuniary fine, and in order to bring those who were not subjects of the republic under its jurisdiction, the Florentines were forbidden, under severe penalty, to trade with any foreigner who did not engage to submit to the consul's jurisdiction and to appear before him [33].
IV.
PERSONALITY OF LAWS AND DIPLOMATIC ASYLUM (^)
That the principle of the personality of laws bears a causal relationship to the development of extraterritoriality is further manifested by a very interesting bit of evidence. In his study of diplomatic asylum, Professor John Bassett Moore has traced this extraordinary privilege of ambassadors to the time when territorial sovereignty was unknown to the intercourse of nations [34]. He shows further that the decline of diplomatic asylum has been a slow process and that in the history of modern Europe survivals of the decaying institution have not been uncommon, the practice being especially enduring in Spain, where, as late as 1873, a political refugee was sheltered by the British Minister at Madrid [35]. Practically the same thing may be said of extraterritoriality. Its origin is attributable to the absence of absolute territorial sovereignty and the accompanying tradition of the personality of laws, while its survivals in Europe, as will be shown later in this chapter, are equally reminiscent of the tardiness of its decline. But what is most interesting of all is the fact that just as diplomatic asylum lingered longest in Spain, so were extraterritorial rights maintained there at a very late date. By the Capitulations of 1782 [36] and 1799 [37], Spain granted reciprocal extraterritorial jurisdiction respectively to the Ottoman Empire and Morocco, both of which, be it remembered, were Mohammedan Powers. These Capitulations thus throw overboard the theory that extraterritoriality was in any way intended to derogate from the sovereignty of the State granting it, inasmuch as the notion of territorial sovereignty was as yet unknown when extraterritoriality took its root.
V.
THE OFFICE OF THE JUDGE-CONSUL (^)
The development of commerce
made necessary special organs to take charge of foreign interests. Before
the advent of the foreign consul, the various States created offices which
exercised administrative and judicial supervision over foreign residents
within their confines. The office of the praetor peregrinus in Rome has been mentioned above. During the reigns of Theodosius the Great (379-395) and of Honorius (395-423), magistrates were created and invested with the right to decide cases of accidents of the sea and of salvage [38]. But the period during which the development of these judge-consuls, as they were sometimes called, assumed real importance was in the Middle Ages. Between the tenth and thirteenth centuries, the French, Italian, and Spanish cities set up courts with authority to decide commercial disputes and with jurisdiction over resident foreign merchants [39]. The members of these courts were given the generic name "consuls" and were variously designated as consules mercatorum, consuls des marchands, consuls
de commerce, juge-consuls, and juges-conservateurs [40]. At about the same time, the Hanseatic cities, though they did not have consular courts (*A) like those in the French, Italian and Spanish cities, conferred upon their deputies in the diet the authority to decide all commercial and maritime questions. In 1447, the Hanseatic cities instituted a tribunal of commerce sitting at Lübeck, of which the President was known as the Alderman, his functions being similar to those of the judge-consul in the other countries [41]. The fact to be noted is that, of the functions of these magistrates, judicial competence was invariably a part. It is more than probable that the extraterritorial jurisdiction granted to the European consuls in. the Levant was but an extension of the functions assumed by the judge-consuls at home [42].
VI.
THE FOREIGN CONSULATE IN MEDIAEVAL EUROPE (^)
The Crusades, it will be seen later, afforded an effective medium for the transplantation of the system of judge-consuls. But in Europe itself, during the same period, the office of the foreign consul, was generally invested with judicial functions.
The merchants of the Italian
cities who traded in France were subject to the jurisdiction of special
judges of their own nationality, called Captains of the University of
Lombard and Tuscan Merchants, who decided all cases between them [43]. In 1277, a treaty concluded with the French established the Genoese at Nîmes and granted to them the right to be judged by their recteur according to their own laws [44].
In the act of privilege which Ferdinand III of Castile accorded in 1251 to the Genoese at Seville, it is stipulated that the latter should have consuls of their own nationality, with the right to decide without appeal, disputes between themselves [45]. In the history of Pisa, the consulate is known to have been maintained from the twelfth century onward under the name consules maris, with jurisdictional rights [46].
An interesting treaty between Frederick II, Emperor and King of Sicily and Abbuissac, Prince of the Saracens of Africa, dated 1230, provided, that in the island of Corsica, there should be a Mohammedan consul or prefect to administer justice to the Mohammedan merchants residing there, although the consul should be established by the Emperor and administer justice in his name [47].
The French cities likewise enjoyed rights of jurisdiction in Italy and in Spain [48]. The Aragonians in Seville were granted by King Alfonso I in 1282 the same rights as had been accorded previously to the Genoese in the same city [49].
As has been seen, the Hanseatic League was particularly jealous of the right of its own members to be exempt from any foreign jurisdiction. In actual practice, many efforts were made to secure the safeguard of this right. In Scania, which now belongs to Sweden, privileges were granted to the Hanseatic merchants in 1361 and 1368, including the right to choose from among themselves judges to decide their disputes according to the law of Lübeck [50]. By the peace of 1285, it was stipulated that disputes between Germans in Norway were to be decided by their own judges [51]. Even in England, King Edward IV granted to the merchants of Hansa the right to be judged by their own magistrates according to their own laws. The treaty of 1474 permitted the Hanseatic merchants in London, to hold in perpetuity their special community known as the Steelyard. Cases of contract in which Englishmen proceeded against Germans were to be heard before two specially appointed English judges, and the same practice was to be observed in Germany. Within the Steelyard, the merchants were to have exclusive administration, and, what is more important, they were completely freed from any judicial process emanating from the local authorities ("Dampnis, Injuris, Spoliationibus, Rapinis,
Incarcerationibus, Arrestationibus Personarum, Bonorum, & Mercandisarum
. . . per viam Facti, per viam Judici & Sententiae, seu Executionis
. . . absolvunt firmitir per praesentes"). The special nature of the privileges granted is indicated by the promise of King Edward IV not to concede them to other foreigners [52]. (*B)
In England, the office of
the foreign consul did not make its appearance until the beginning of the
fifteenth century. But long before England sent consuls abroad to protect
the interests of her nationals, she had made efforts to safeguard the security
of foreign life and property within her own borders. Even before the Hanseatic
treaty of 1474, King Edward I had issued his great Charter, in 1303, commonly
known as the Carta Mercatoria, which contained a provision that in all cases, except those entailing the death penalty, in which a foreign merchant was implicated, the jury to be charged with the trial of the cause should be composed of an equal number of foreign merchants and natives [53].
Although the nature of the grant differed considerably from a concession of consular jurisdiction, it nevertheless throws some light on the general privileges enjoyed by the foreigner in the Middle Ages. Indeed, the institution of the mixed jury is so important that some writers have regarded it as the origin of the modern mixed court [54].
In 1404, King Henry IV accorded
to the merchants of England in the Hanseatic towns the power to choose
a certain number of individuals to be known as "Gubernatores mercatorum" and to exercise, in the name of the King, judicial authority over their compatriots. The same power was conferred on English merchants in the Netherlands in 1406, and in Norway, Sweden and Denmark in 1408. In 1485, King Richard III bestowed upon one Lorenzo Strozzi the office of the consul in Italy, with power to decide disputes between the Englishmen resident there [55]. In the letters-patent issued to the consul, it was stated that in creating the office, the King had consulted the experience of other nations [56], thereby showing the trend of international practice at the time. There is little doubt, therefore, that one of the most important and common functions of the consul during this period was his judicial competence.
VII.
MODERN SURVIVALS (^)
During the sixteenth and seventeenth
centuries, an era of dynastic and colonial rivalry set in. The discovery
of America initiated among the more powerful maritime Powers of Europe
the struggle for colonial possessions. The ascendancy of these Powers aided
their assertion of an exclusive territorial sovereignty, until in 1648
the treaties making up the Peace of Westphalia accepted the latter as a
fundamental principle of international intercourse. This development of
territorial sovereignty was distinctly fatal to the existence of the system
of consular jurisdiction, and facilitated considerably its decadence in
Europe, because it was founded on the opposite theory of the personality
of laws.
But even from this period some documents have been handed down, which show the persistence of consular jurisdiction in Europe. In the Principal Navigations of the English Nation, Hakluyt gives the text of "a copie of the first priuileges graunted by the Emperour of Russia to the English Marchants in the yeere 1555." Among the provisions of this document is the following remarkable article:
4. Item, we giue and graunt unto the saide Marchants and their successours, that such person as is, or shalbe commended unto us, our heires or successours by the Gouernour, Consuls and assistants of the said fellowship residant within the citie of London within the realme of England, to be their chiefe Factor within this our empire and dominions, may and shal haue ful power and authoritie to gouerne and rule all Englishmen that haue had, or shall haue accesse, or repaire in or to this said Empire and iurisdictions, or any part thereof, and shal and may minister unto them, and euery of them good iustice in all their causes, plaints, quarrels, and disorders betweene them moued, and to be moued, and assemble, deliberate, consult, conclude, define, determine, and make such actes, and ordinances, as he so commended with his associates shall thinke good and meete for the good order, gouernment and rule of the said Marchants, and all other Englishmen repairing to this our saide empire or dominions, or any part thereof, and to set and leuie upon all, and euery Englishman, offender or offenders, of such their acts and ordinances made, and to be made, penalties and mulcts by fine and imprisonment [57].
The letters-patent granted by Francis II, King of France, in 1559, to the Swedish subjects trading within his territory recognized the right of the latter to be judged by their own magistrates in all differences that might arise among them, although in mixed cases of any sort they were placed under the jurisdiction of the local authorities [58].
By the treaty of February 24, 1606, between Henry IV of France and James I of England, it was arranged that all commercial disputes involving nationals of one party in certain portions of the other should be heard and decided by a mixed tribunal, composed of four merchants, two French and two English. In case they could not agree, they should choose a French merchant if it was in France, or an English merchant if it was in England, "so that the Judgment pass'd by the Plurality of Voices shall be follow'd and put in execution." These merchant judges were to be known as "Conservators of Commerce," and in each country the two foreign Conservators were to be appointed by their Ambassador [59]. Later, the system was altered in such a way that no foreign merchants were to have jurisdictional rights in either country, the ambassador or his deputy only being permitted to "assist at any Judgment and Trials whatsoever which concern the Goods and Life of a Subject of his Prince, and especially when a Definitive Judgment is to be made or pass'd [60].
What is most remarkable, perhaps, is the treaty of September 24, 1631, between Louis XIII, Emperor of France, and Molei Elqualid, Emperor of Morocco, which contains terms of absolute reciprocity, so far as extraterritorial jurisdiction was concerned [61]. The most interesting provision of this document is article 9, which stipulates that the ambassador of the Emperor of Morocco in France and the ambassador or consul of France in Morocco should determine all disputes respectively between Moroccans in France and Frenchmen in Morocco [62]. In cases between Frenchmen and Moors, the local authorities on either side were alone competent [63], and to make mutual intervention in territorial jurisdiction impossible, article 12 contains the admonition that all judgments and sentences given by the local authorities should be "validly executed" without interference on the part of the other contracting party" [64]. Here, then, is a treaty of perfect equality and reciprocity between a Christian and a Mohammedan Power, hearing a strikingly modern date, which assures to the parties thereto reciprocal extraterritorial jurisdiction of a limited sort. The arrangement is all the more significant when it is remembered that France, of all the continental European Powers, was the first in which national sovereignty was most completely established and a systematic jurisprudence most fully developed [65]. It ought to go far to prove that the institution of extraterritoriality was not contrived, at the beginning at any rate, and for a long time in the modern period, to meet the special situation of a defective legal system in non-Christian Powers. The explanation must be sought, if anywhere, in the tradition of the personality of laws long prevalent in Europe [66].
As late as the eighteenth century, a number of interesting survivals of the decadent jurisdiction of the consul invite our attention. It is noteworthy that in the treaty of January 23, 1721, between Great Britain and Morocco, a measure of extraterritorial jurisdiction was granted, to the Moors in England [67]. This privilege was repeatedly renewed and confirmed by later treaties [68].
In the treaty of 1740 between the Ottoman Empire and the Kingdom of the Two Sicilies, there is a reciprocal provision regarding the adjudication of cases arising between Sicilians in Turkey and between Turks in Sicily. According to article 5, these cases should be disposed of by their respective consuls according to their own laws and customs [69].
The treaty of 1787 between France and Russia stipulated that the consul of one or the other party might decide disputes between his nationals when they submitted to his jurisdiction by mutual consent [70].
Still more interesting is
the treaty of 1788 between France and the United States, article 12 of
which provides:
All differences and suits between the subjects of the Most Christian King in the United States, or between the citizens of the United States within the dominions of the Most Christian King . . . shall be determined by the respective Consuls and Vice-Consuls, either by a reference to arbitrators, or by a summary judgment, and without costs. No officer of the country, civil or military, shall interfere therein, or take any part whatever in the matter; and the appeals from the said consular sentences shall be carried before the tribunals of France or of the United States, to whom it may appertain to take cognizance thereof [71].
In 1825, Sardinia and Morocco
mutually engaged to permit consular intervention in cases which involved
the subjects of either country in the other. The pertinent provision is
quoted below:
XXII. If, in the States of
Morocco, disturbances should arise between our subjects and subjects of
Morocco, the difficulties shall be settled in equity and justice, for which
purposes our subjects may present themselves before the Court, assisted
by our Consul or other Consular official, or may be represented by an attorney.
Appeal from the decision, whether favorable or otherwise, may be made to
the Emperor.
On the other hand, should a question arise in our States, it shall be determined by the competent authority in the presence of the Consul of Morocco, or his agent or attorney, and if justice is not accorded, appeal shall be made to a Supreme Judge, to whom shall appertain the jurisdiction in such a case [72].
The system of judges conservators enjoyed by the English in Portugal is a close approximation to the present-day regime of consular jurisdiction. According to Shillington and Chapman, the system goes as far back as the fifteenth century [73]. A specific provision for the office and functions of the judges conservators is contained in the treaty of July 10, 1654, Article VII of which lays down:
Also, for judging all causes which shall relate to the people of this Republic [England], a judge conservator shall be deputed, from whom no appeal shall he granted, unless to a committee of senators where the disputes shall be determined within the space of four months, at most, after the appeals [74].
By the treaty of February 10, 1810, it was arranged to give the English merchants "the privilege of nominating and having special magistrates to act for them as Judges Conservator," with jurisdiction over "all causes brought before them by British subjects." It must be pointed out, however, that the selection of these judges conservators, though they were chosen by the British subjects in the locality, had to be approved by the Prince Regent of Portugal [75]. The privilege of maintaining judges conservators was enjoyed by the English in Brazil until 1827, when a treaty between the Emperor of Brazil and the King of England abolished it [76]. In Portugal proper, it is interesting to note, the system of judge conservators was not formally abolished until 1842 [77].
That the system of judges conservators existed in the seventeenth and eighteenth centuries in Spanish America is evidenced by a number of "assiento" treaties or contracts. The Portuguese, French and English agreements, dated respectively July 12, 1696 [78], August 27, 1701 [79], and March 26, 1713 [80], all provide for these officers [81]. They were to be chosen by the merchants concerned, with the approval of the King of Spain, and were "to have, cognizance, exclusive of all others, of all causes, affairs and suits, relating to the Assiento, with full authority and jurisdiction," but from their decisions an appeal lay to the supreme council of the Indies [82]. The author has attempted in vain to ascertain the actual operation of the system, to which all the available material gives no clue.
In the municipal legislation and orders of some European States, similar survivals were for a time equally evident. The Patent of John Chandler, as English consul to Spain, dated 1631, gave him the power "by way of interposition to compound . . . all contentions . . . that may arise amongst them [English merchants] and may be conveniently ordered without further proceeding to Lawe" [83].
The instructions of Peter the Great to one Jewreinoff, Russian consul at Cadiz, dated 1723, mentioned specifically among his functions the decision of differences between the subjects of the Czar in Spain [84]. Likewise, the consular instructions issued by the King of Denmark and Norway, February 10, 1749, contained a provision ordering the consul to assume jurisdiction not only over the masters and crews of die Danish vessels, but also over the Danish merchants trading abroad [85]. According to the French edict of June, 1778, regulating the judicial and police functions of French consuls abroad, the latter were empowered to take cognizance of all disputes between their compatriots, and all French merchants were prohibited from bringing their fellow-citizens before any other tribunal [86]. In his History of Genoa, M. Vincens confirms the actual enforcement of this edict by relating that, in 1797, the French consul was the magistrate of first instance in Genoa for all civil disputes in which one of his nationals was defendant [87].
These late survivals of extraterritoriality in Europe are to be explained partly by the as yet deficient judicial systems of some of the European Powers and partly by the abiding influence of the theory of the personality of laws. An example of the former is the situation in Portugal. In this country, according to Shillington and Chapman, "the general desire of the English, in fact, was to escape from the ordinary Portuguese courts. The administration in Portugal seems to have been both corrupt and arbitrary, and strangers, ill-acquainted with the customs and language of the country, suffered considerably" [88]. Consequently, the system of judges conservators was maintained in Portugal to protect the English against the injustices of the native courts. That this statement is well-founded is shown by the treaty which abolished the system in Portugal. This instrument, dated 1842, gives as the reason for the abolition "the state of progress in which the system of legislation and administration of justice in Portugal was found" [89]. This is significant, because in the decline of extraterritoriality, the improvement of the native judicial system has always been an important factor. In the discussion to follow, we shall have repeated occasion to take note of this fact.
In other instances, however,
the persistence of extraterritoriality could not be ascribed to judicial
deficiency. As we hare pointed out above, to France belonged the honor
of being the continental European Power in which law and sovereignty received
their earliest development. Yet France made a treaty with Morocco in 1631,
in which reciprocal extraterritorial privileges were provided for. This
must have been due, if anything, to the existence of deep-seated custom
having its basis in the time-honored theory of the personality of laws.
VIII.
TESTIMONY OF PUBLICISTS (^)
The works of the early writers
on international law seem to betray the influence of the once prevalent
practice. Wicquefort, whose treatise on l'Embassadeur was published in 1681, denied to the consul any public character, but made special mention of his judicial function [90]. Bynkershoek, in his De Foro Legatorum, 1721, speaks of the consuls as protectors and sometimes judges of the merchants of their nation [91]. Wolff, whose work was published in 1754, defines the consul as one who is sent abroad to safeguard the privileges and rights of his compatriots and to decide their disputes [92]. In his Droit des
Gens, published in 1758, Vattel follows closely the definition of Wolff [93]. Of these early writers Moser was the latest to describe the judicial competence of the consul, and he was also the most specific of them all. He says that consuls are judges of first instance in cases involving their compatriots, but that in mixed cases in which natives of the country where the consuls reside or foreigners of a third country are concerned, the local authorities have jurisdiction [94]. It is not altogether easy to ascertain the exact limits of consular jurisdiction in mediaeval Europe [95]. But while Moser's conclusions might reasonably be established as a general proposition, instances are not lacking, as we have seen, in which it was arranged to settle even mixed cases according to the principle actor
sequitur forum rei, one of the basic formulae of modern extraterritoriality.
That the judicial competence
of the foreign consul was treated by these writers as of equal importance
to his commercial powers is at once indicative of two things, which must
have been responsible for their views on the subject as cited above. First,
it is suggestive of the fact that the principle of territorial sovereignty
is only a recent conception, reaching its full development after a painfully
slow process of transformation. Secondly - and this is but. a corollary
of the first, consideration - the widely prevalent theory of the personality
of laws held its sway in Europe long after the inception of the countervailing
principle of territorial sovereignty, and in its decadence left many survivals
which have existed in Europe well into the end of the last century.
Notes by the Author (^)
[1] Maine, Ancient Law (3d Am. ed., New York, 1888), p. 99. Cf, Moore, op. cit., vol. ii, p. 761.
[2] Cf. Twiss, Law of Nations (2nd ed, Oxford, 1884), vol. i, p. 444.
[3] Herodotus, bk. ii, ch. 112. Sir Travers Twiss also mentions "that the merchants of Tyre who were strangers to the religion of Egypt, were nevertheless permitted in the Twelfth Century before Christ to establish trading factories in three different cities on the Tanitic branch of the Nile, where they were allowed the privilege of living under their own laws, and of worshipping according to their own religious rites." Op. cit., vol. i, p. 444.
[4] Herodotus, bk. ii, ch. 178. Cf. Twiss, op. cit., vol. i, p. 445; Pardessus, Collection de lois maritime antérieures au XXVIIIe siècle (Paris, 1828-45), vol. i, p. 21.
[5] Vol. i, p. 193.
[6] Phillipson, op. cit., vol. i, p. 150. The earliest evidence of the existence of proxenoi dates from the middle of the fifth century, ibid., p. 148.
[7] Pardessus, op. cit., vol. i, p. 52; Hautefeuille, Histoire du droit maritime international (2d ed., Paris, 1869), p. 96, n. 1.
[8] Phillipson, op. cit., vol. i, p. 149; Miltitz, Manuel des consuls (London and Berlin, 1837-41), vol. i, p. 11.
[9] Hautefeuille, ibid.
[10] Op. cit., p. 192.
[11] Mommsen et Marquardt, Manuel des antiquités romaines (Paris, 1888-1907), vol. iii (Mommsen, Le Droit public romain, vol. iii), p. 225.
[12] Ibid., p. 252.
[13] Girard, Manuel élémentaire de droit romain (6th ed., Paris, 1918), p. 113
[14] Mommsen et Marquardt. op. cit., vol. vi, pt. ii (Mommsen, op. cit., vol. vi, pt. ii), p. 216.
[15] For the jurisdiction of the praetor urbanus over the Latins, see Mommsen, op. cit., vol. vi, pt. ii, p. 221; Girard, op. cit., p. 112.
[16] Mommsen et Marquardt, op. cit., vol. iii, p. 260, n. 3.
[17] Miltitz, op. cit., vol. i, p. 15.
[18] Pears, Fall of Constantinople (New York, 1886), p. 148.
[19] Savigny, Geschichte des Römischen Rechts im Mittelalter (Heidelberg, 1834-51), vol. i, p. 116.
[20] Ibid., p. 126. Cf. Jenks, Law and Politics in the Middle Ages (London. 1913), p. 14.
[21] "Dum transmarini negotiatores inter se causam habuerint, nullus de sedibus nostris eos audire presumat, nisi tantummodo suis legibus audiantur apud telonarios suos." Leges Visigoth., lib. xi, tit. iii, cap. ii, Pardessus, op. cit., vol. i, p. 152.
[22] Miltitz, op. cit., vol. i, p. 24.
[23] Savigny, op. cit., vol. i, p. 124.
[24] Jenks, op. cit., p. 16.
[25] Savigny, op. cit., vol. i, p. 127.
[26] Ibid., pp. 167-8.
[27] Pardessus, op. cit., vol. ii, p. cxxvij.
[28] Ibid., pp. lxxxix, cxxvij.
[29] Miltitz, op.cit., vol. i, pp. 401-408.
[30] Pardessus, op. cit., vol. v, p. 230.
[31] Ibid., vol. i, p. 144. The text of the Diploma of 1190 is reproduced in Miltitz, op. cit., vol. ii, pt. i, p. 502.
[32] Rubrique xlviii, Pardessus, op. cit., vol. v, pp. 160-161.
[33] Miltitz, op. cit., vol. ii, pt. i, p. 152. Cf. Bonfils, Manuel de droit international (7th ed., Paris, 1914), § 737n.
[34] Moore, op. cit., vol. ii, p. 761.
[35] Ibid., pp. 766 et seq., esp. p. 770.
[36] Art. 5: "....it shall be the same with regard to the subjects and merchants of the Ottoman Empire in the dominions of Spain." Noradounghian, Recueil d'actes internationaux de l'Empire Ottoman (Paris, 1897-1903), vol. i, p. 346.
[37] Art. 6, Martens, Recueil des principaux traités (Gottingue, 1791-1801), vol. vi, p. 585.
[38] Miltitz, op. cit., vol. i. p. 160.
[39] Ibid., pp. 162-175.
[40] Ibid., p. 6.
[41] Ibid., pp. 175-176.
[42] Cf. Martens, Das Consularwesen und die Consularjurisdiction im Orient (Berlin, 1874), p. 100; also Depping, Histoire du Commerce entre le Levant et l’Europe (Paris, 1830), vol. ii, p. 52, where the author says: "It is from a remote antiquity that there were, in all the States on the shores of the Mediterranean, courts of commerce, where nearly the same rules were followed. The consulates were nothing but courts of this nature transported to foreign countries."
[43] Miltitz, op. cit., vol. ii, pt. i, p. 77.
[44] Vincens, Histoire de la République de Gênes (Paris, 1842), vol. i, p. 389.
[45] Depping, op. cit., vol. ii, p. 47.
[46] Pardessus, op. cit., vol. iv, p. 557.
[47] Dumont, Corps universel diplomatique (Amsterdam, 1726-31), vol. I, pt. i, p. 168.
[48] Miltitz, op. cit., vol. ii, pt. i, p. 203.
[49] Ibid., p. 294.
[50] Miltitz, op. cit., vol. ii, pt. i, pp. 343-344.
[51] Ibid., p. 344.
[52] Rymer, Foedera (2nd ed., London, 1726-35), vol. ix, pp. 795, 796, 797.
[53] "6. Item, that in all manner of pleas, saving in case where punishment of death is to be inflicted, where a marchant is impleaded, or sueth another, of what condition soeuer hee bee which is sued, whether stranger or home borne, in fayres, cities, or boroughs, where sufficient numbers of marchants of the foresayd countreis are, and where the triall ought to bee made, let the one halfe of the Iurie be of the sayd marchants, and the other halfe of good and lawfull men of the place where the suite shall fall out to bee: and if sufficient number of marchants of the sayd countries cannot bee found, those which shall be found fit in that place shall be put upon the iurie, and the rest shall be chosen of good and fit men of the places where such suit shall chance to be." Hakluyt, The Principal Navigations, Voyages, Traffiques, and Discoveries of the English Nation (ed. by K. Goldsmid, Edinburgh, 1885-90), vol. i, p. 121.
[54] Lippmann, Die Konsularjurisdiktion im Orient (Leipzig, 1898), p. 10.
[55] Miltitz, op. cit., vol. ii, pt. i, pp. 385-386.
[56] Ibid., p. 385.
[57] Hakluyt, op. cit., vol. iii, p. 99.
[58] Dumont, op. cit., vol. v, pt. i, p. 61.
[59] Arts. 7, 8, 9. A General Collection of Treatys (London, I772). vol. ii, pp. 150-151.
[60] Art. 43, ibid., p. 175.
[61] Dumout, op. cit., vol. vi, pt. i, p. 20.
[62] ''That if any difference should arise between the Moorish merchants who are in France, the Ambassador of the Emperor of Morocco residing in France shall terminate them, and the same shall be done by the Ambassador or Consul of France in Africa."
[63] Art. 10.
[64] That all the judgments and sentences given by the Judges and Officers of the Emperor of Morocco [in disputes] between the subjects of His Christian Majesty and the subjects of the said Emperor, shall be validly executed, without any complaint to the Kingdom of France, and the same shall be practised between the subjects of Morocco and the Frenchmen in France."
[65] Moore, op. cit., vol. ii, p. 762.
[66] In some of the peace treaties of the seventeenth century, provision was made for the remission of prize cases to the home courts of the defendant's nationality. See art. 32, Anglo-French treaty of 1604, A General Collection of Treatys, vol. ii, p. 145; art. 30, Anglo-Spanish treaty of Nov. 15, 1630, ibid., p. 289: art. 23, Peace of the Pyrenees, Nov. 7, 1659, ibid., vol. i, p. 49. In later treaties any provision of such a nature was conspicuously absent. See art. 27, Treaty of Nymeguen. Aug. 10, 1678, Dumont, op. cit., vol. vii, pt. i. p. 360; art. 32, Treaty of Ryswik, Sep. 20, 1697, ibid., pt. ii, p. 289.
[67] Art. IX. "....and if any quarrel or dispute shall happen between Musselmen in England, or in any of the English Dominions, by which hurt may ensue, the same to be heard before 1 Christian and 1 Musselman, and to be determined according to the Laws of Great Britain." British and Foreign State Papers (hereafter referred to as State Papers), vol. i. p. 430.
[68] Art. 4, treaty of May 10, 1729; art. 4, Feb. 1, 1751; art. 9, July 28, 1760; art. 8, April 8, 1791; and art. 8, June 14, 1801. Ibid., pp. 431, 435, 439, 447, 457.
[69] Noradounghian, Recueil d'actes internationaux de l'empire ottoman (Paris, 1897-1903), vol. i, p. 272.
[70] Art. 7, Martens, Recueil de traités (2nd ed., Gottingen, 1817-35), vol. iv, p. 199.
[71] U.S. Treaties, Conventions, etc. (hereafter referred to as Malloy), Washington, 1910, vol. i. p. 495. In Villeneuve v. Barron, it was held that the consular jurisdiction of France did "not extend generally to all differences and suits between Frenchmen." Moore, op. cit., vol. ii, p. 84: The convention of 1788 was abrogated by Act of Congress, July 7, 1798, Malloy, vol. i, p. 490n.
[72] State Papers, vol. xcviii, p. 979.
[73] Shillington and Chapman, Commercial Relations of England and Portugal (New York, 1907), p. 182.
[74] Chalmers, A Collection of Treaties between Great Britain and Other Powers (London, 1790), vol. ii, p. 271.
[75] Martens, Nouveau supplémens au recueil de traités (Gottingue, 1839-42), vol. ii, p. 158.
[76] Art. 6, Annuaire historique universel, 1827, p. 159.
[77] Art. 17, Martens, Nouveau recueil général de traités (Gottingue, 1843-75), vol. iii, p. 338.
[78] Art. 8, Castro, Colleçcão de tradados (Lisbon, 1856-58), vol. i, p. 53.
[79] Art. 13, Dumont, op. cit., vol. viii, pt. i, p. 85.
[80] Art. 13, Jenkinson, A Collection of All the Treaties (London. 1785), vol. i, p. 382.
[81] The treaty of peace signed at Utrecht on June 26, 1714, between Spain and the United Provinces contained a similar provision (art. 29). Dumout, op. cit., vol. viii, pt. i, p. 430.
[82] Cf. Ortega, Questiones del derecho publico (Madrid, 1747), pp. 314 et seq. In this connection, a nineteenth century survival of consular jurisdiction in Europe may be mentioned. The treaty of May 2, 1889, between Italy and Ethiopia, provided for the reciprocal exercise of consular jurisdiction in regard to criminal matters. After setting forth the rights of the Italians in Ethiopia, the agreement goes on to say:
"Similarly, the Ethiopians accused of a crime committed in Italian territory shall be tried by the Ethiopian authorities." Art. 12, State Papers, vol. lxxxi, p. 735.
[83] Shillington and Chapman, op.cit., app. ii, p. 327.
[84] Borel, De Origine et des fonctions des consuls (St. Petersburg, 1807), p. 90.
[85] Moser, Versuch des neuesten europäischen Völkerrechts (Frankfurt a. M., 1777-80), vol. vii, p. 833.
[86] Arts. I, 2, Martens, Recueil de traités, vol. ii, pp. 632-633.
[87] Vincens, Hist. de la République de Gênes, vol. i, p. 86.
[88] Op. cit., p. 182.
[89] Art. 17, Martens, N. R. G, vol. iii, p. 338.
[90] "Consuls are only merchants, who notwithstanding their Office of Judge in the Controversies that may arise among those of their own Nation ... are liable to the Justice of the Place where they reside. ..." The Ambassador and His Functions, trans, by Digby (London, 1716), p. 40.
[91] "Et à dire le vrai, ces Consuls ne sont autrechose que des Protecteurs, quelquefois Juges des Marchands de leur Nations: ... d'ordinaire même ce ne sont que des Marchands, que l’on envoie non pour représenter leur Prince auprès d'une autre Puissance Souveraine, mais pour protéger les Sujets de leur Prince, en ce qui regarde le Négoce, souvent aussi pour connoître & décider des differens qu'il pourra y avoir entr'eux au sujet de ces fortes d'affaires." Bynkershoek, Traité du juge competent, trans. by Barbeyrac (The Hague, 1723), ch. x, § vi, p. 112.
[92] "Consul sind solche Personen, welchen in den See-Handelsstäpten oder den Haafen aufgetragen ist, die Privilegien und Rechte der Nation, oder ihres Volkes zu bewahren, und die Streitigkeiten der Kaufleute zu schlichten." Wolff, Grundsätze des Natur- und Völkerrechts (Halle, 1754), § 1118, p. 815.
[93] "L'une des institutions modernes les plus utiles au commerce est celle des consuls. Ce sont des gens qui dans les grandes places de commerce, & surtout dans les ports de mer, en pays étrangers, ont la commission de veiller à la conservation des droits et des privileges de leur nation, & de terminer les difficultés qui peuvent naître entre ses marchands." Vattel, Le Droit des Gens, (London, 1758), vol. i, bk. ii, ch. ii, § 34.
[94] "Seynd sie [consuln] die Richtere in erster Instanz, wann zwischen ihren Landesleuten in Handlungssachen in dem jedem Consul angewisenen Districkt Streitigkeiten entstehen. Wann aber die Streitigkeiten sich zwischen ihren Landesleuteu einer-und denen Eingesessenen oder dritten Fremden, anderer Seits enthalten; so gehören sie für den Souverain des Orts, und dessen Gerichte." Moser, Versuch des neuesten europäischen Völkerrechts, 1777-80, vol. vii, pp. 840-841.
[95] Un Ancien Diplomate, Le Regime des capitulations (Paris, 1898). p. 27.