WITH THE TREATY'S ratification, the British authorities became responsible for the behaviour of Britons in Korea – but, as Parkes had understood only too well, the British authorities had no legal basis for exercising any jurisdiction over their fellow Britons in Korea until the necessary Order in Council had been made under the Foreign Jurisdiction Act, 1843 (FJA1843) which provided the statutory basis for the Crown's jurisdiction over British subjects abroad.

In Japan, the reverse position had applied but the practical effect had been the same: the Japan Order in Council, 1859 had been made on 3 March 1859 but the Treaty of Yedo only came into effect on 1 July 1859. So, between the two dates, the British consular officials in Japan had no jurisdiction over British subjects there.

Without proper authorisation to exercise judicial power, the consuls would open themselves up to personal liability towards defendants for unlawful detention or other misuse of powers. Such concerns were not groundless as the British community on the China Coast had no compunction about suing British officials for infringements of what they perceived to be their rights – as we saw when Moss was awarded $2,000 in damages against Alcock, the British Minister to Japan, for unlawful detention.

On the other hand, British concerns about prestige came immediately to the fore as Parkes was reluctant to admit to the Korean authorities that, absent an enabling Order in Council, the British consular authorities had no jurisdiction over their fellow subjects in Korea. Therefore, he suggested to Aston that the better course was for such authority to be assumed as against British subjects committing criminal offences in Korea. Nevertheless, caution and discretion should be exercised in relation to both criminal and civil jurisdiction. Aston should use his ‘prudence and discretion, the object to be obtained being to preserve peace and good order among British subjects without using any stronger measures than may in each case be absolutely necessary’.

In those criminal cases that could be properly be disposed of by a fine or imprisonment, Aston should impose a fine and only where any lesser punishment would be ‘altogether inappropriate’ was he to impose a term of imprisonment.