not be regarded by the former as Contraband of War, or that certain vessels shall not be liable to search or seizure by the former, if laden with cargoes belonging to the subjects of any third Power, or that Privateers shall not be allowed to be fitted out or provisioned in the ports of one of the contracting parties by any Third Power engaged in war with the other contracting party 23. Again, it may be provided in case of war breaking out between Powers which are Strangers to the contracting Parties, that the latter will maintain the security of their mutual commerce on the High Seas by an armed force, if it should be required; or that debts due from the individuals of the one Nation to individuals of the other, and the shares or money which they may have in the public funds, or in public or private banks, shall never in any case of war be sequestrated or confiscated; or that foreign subjects shall be permitted to remain and continue their business (if it be other than that of commerce on the high seas), notwithstanding a rupture between the Governments, so long as they conduct such business innocently 25.

24

A Nation may enter into a Treaty by which it grants exclusive privileges of trade to one Nation, and deprives itself of the liberty to grant similar privileges to another. Of this kind was the famous Methuen Treaty 26, concluded between Great Britain and Portugal (27 Dec. 1703), whereby Portugal obtained a

23 Treaty between France and the United States of America, 6 Feb. 1778. Martens, Recueil, II. p. 595.

24 Treaty between Great Britain and the United States of America, 19 Nov. 1794. Martens, Recueil, V. p. 662. Grotius de Jure B. et P. L. III. c. 20. § 16.

25 Treaty between the United States of America and the Republic of Chili, 16 May, 1832. Martens, N. R. XI. p. 439. The provisions of this Treaty deserve attention, as they are most comprehensive.

26 Chalmers' Collection of Treaties, T. II. p. 305.

preferential scale of duties for her wines in British markets, whilst Great Britain, on the other hand, obtained what she considered to be a satisfactory equivalent, by securing the opening of the Portuguese markets for her woollen manufactures. It was formerly the policy of the Christian Nations of Europe to obtain exclusive privileges of trade by Treaties. with Asiatic and African Nations. Thus the Dutch engrossed to themselves the trade in cinnamon and other produce of the island of Ceylon, by a Treaty with the King of Candy". An opposite policy now prevails; and we find accordingly Great Britain taking care to recite in her Treaty 28 with China, that the Five Ports had been declared to be open to the trade of all Nations heretofore trading at Canton, and stipulating only for her own subjects the same privileges, as should at any time be accorded to the Subjects of other Powers.

Jurisdic

§ 218. Treaties of Jurisdiction are for the most part Treaties of of two kinds they either provide for the establish- tion. ment of special tribunals for the adjudication of all questions which may arise amongst foreign merchants, or between foreign merchants and the Subjects of the State wherein such merchants carry on their trade; or they provide for the exercise of jurisdiction by Consuls or Commercial Agents over their own countrymen within the territory of the State wherein they carry on their trade, or over their own countrymen and the subjects of such State, in matters of trade which may come into dispute between them. A foreigner, under the Common Law of Nations, may

27 Traité de Paix entre la Hollande et le Roi de Candy, (14 Feb. 1766) Martens, Recueil, T. I. p. 319.

25 Supplemental Treaty of Houmon-Schai, (8 Oct. 1845). Martens, N. R. Gén. T. V. p. 595

sue a Subject of the State wherein he resides in the Courts of that State, and he may be sued in those Courts by Subjects of that State. A foreigner may in like manner sue a foreigner in the Courts of a State wherein they are both resident. Jurisdiction, as between Nations being territorial is founded by the presence of an individual within the territory of a Nation.

The Tribunals however of a State are not under any obligation to administer the Law of a Foreign State, unless there be a Treaty between the States to that effect. In the cases where Treaties provide for the erection of tribunals, to decide all controversies between Strangers (transeuntes) who are not domiciled, such tribunals administer the Foreign Law, if it be invoked to settle the dispute. Thus there were Treaties between Great Britain and Portugal 29, and between Great Britain and Spain 30, and between France and Spain, and between France and Portugal, and between Spain and Portugal, under which special tribunals were provided, over which a Judge Conservator was appointed to preside; whose function it was to decide all disputes in commercial matters, which might arise between the Subjects of the respective States. If, however, a Natural born subject of Great Britain or of France, had acquired a Domicil in Spain or Portugal, he became amenable to the ordinary tribunals of either country3 in any controversy with the Subjects of that country.

29 Treaty of Westminster, 10 July, 1654. Hertslet, II. p. 8. Treaty of Rio Janeiro, 19 Feb. 1810. Hertslet, VI. p. 28. Martens, N. R. III. p. 194. These engagements have been determined by the Treaty of London,

On

July 3, 1842. Hertslet, VI. p. 598.

30 Treaty of Madrid, 23 May, 1667. Hertslet, II. P. 140. Treaty of Utrecht. 9 Dec. 1713. Hertslet, II. p. 205.

31 Fœlix, Droit International Privé, § 148.

the other hand, Treaties provide sometimes for the exercise of an alternative Jurisdiction, as for instance, the Treaty of St. Petersburg 32, concluded between France and Russia, (11 Jan. 1857,) provided that the Consuls of either Power should exercise an exclusive jurisdiction over the masters and crews of the vessels of their own Nation within the Ports of the other Nation; and should exercise a voluntary jurisdiction over merchants of their own Nation, which, if such merchants had recourse to it, the Government of the country to which the Consuls were accredited should enforce; but such merchants might, if they were so minded, in the first instance, have recourse to the ordinary tribunals of the country, which by the local law were empowered to take cognizance of commercial matters. Russia, at the period when this Treaty was concluded, was in substance an Oriental Power, and there are accordingly found in this Treaty a variety of provisions, which are affirmations of the Common Law of Nations, as then received in Western Europe; which, however, had not at such time acquired the sanction of Usage, as a rule of intercourse between Russia and the Western Powers.

Treaties which give an exclusive authority to the Consuls and Commercial Agents of a Nation to decide all disputes amongst merchants of their own country, and between merchants of their own country and the Subjects of the State to which they are accredited, are for the most part founded on a necessity arising out of the great discrepancies which exist between the Laws of the respective Nations in Civil and Criminal matters. The Christian Powers of Europe have from a very early period entered into

32 Martens, Recueil, IV. p. 196.

Treaties of this kind with the Ottoman Porte 33, and with its Dependencies on the Barbary Coast, under which the Consuls of such Powers have exercised an exclusive jurisdiction over their own countrymen in all matters of difference amongst themselves. Treaties for an analogous purpose have been within recent time concluded between Great Britain and China 35, (29 July, 1843,) and between Great Britain and Japan, (26 August, 1858,) with the further provision, that all controversies arising in China or in Japan, between British and Chinese Subjects on the one hand, and between British and Japanese Subjects on the other, shall be determined by the British Consul, assisted in the one case by a Chinese, in the other by a Japanese Officer. The Jurisdiction over British Subjects in Criminal matters is to be exercised exclusively by the British Authorities, even in cases where British Subjects commit any crime against Chinese or Japanese Subjects, or the Subjects or Citizens of any other country. In the Treaty concluded between the Emperor of China and the United States of America 37, (July 3, 1844,) there is a provision to the effect, that all controversies occurring in China, between Citizens of the United States and the Subjects of any other Government, shall be regulated without any regard to the Chinese Authorities, or without any intervention on their part. It is the practice of France, in accordance with the principles of her Civil Law, to conclude Treaties with Foreign Powers, whereby Jurisdiction is granted to the Consuls of France over

33 Hertslet, Treaties, II. p.

346.

3+ Algiers, Hertslet, I. p. 61, 70. Tripoli, ib. p. 127, 146. Tunis, ib. p. 161, 166.

35 Martens, N. R. Gén. V.

p.

434. Hertslet, VI. p. 247.

36 Martens, N. R. Gén. XVI, part II. p. 430.

37 Martens, N. R. Gén. VII. p. 134.