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examination of the cases treated as uncertain at the beginning of Chapter VII this chapter must now be made.

Unless this be permitted, the gradual evolution of the common law becomes an impossibility and if there is no such gradual evolution, the common law loses the chief of its many virtues. In such a process it is inevitable that doctrines should be advanced which seem to go to the utmost confines of thought, but which, in the course of time, are left far behind, become antiquated, and must be abandoned as useless and hindering progress The exalted position of the Court in which they were first for mulated should not make any difference, lest the Court itself become a stumbling block in the process of evolution. These two decisions hold their place in the gradual evolution of a subject rom the clouds by which it has always been much obscured. There can be no disrespect in the suggestion that a re-examination of the principles laid down is necessary, for they appear, on the face of them, to be as obsolete as some of the conditions which were considered to be necessary to the production of books, at the time the judgments were given.

criminal

co...pared

The language used for conferring rights differs inevitably Language of from that used for imposing duties. In the latter case the intend- civil and ed area of incidence of the duty is presumably in the mind of the laws legislator in the former case, except in a few instances already Considered, no more intention on the subject can be implied than that those who are entitled to the right by law should enjoy it. For comparison, it will be useful to put the enacting words of civil and criminal legislation into the same formula: thus-

criminal:

If any person does-(e.g. wilful damage to his neighbour's
property, he shall be guilty of an offence.

civil:-

If any person does

(e.g. registers his book at Stationers,

Hall and pay the fee)—he shall be entitled to a right.
This question is whether " any person

any person" is to receive the same interpretation in the civil as in the criminal provision in other words, whether it is to be limited to persons within the jurisdiction.

The application of both civil and criminal provisions of this nature is based on the same fact, the occurrence of some act within the jurisdiction. The localization of the person in the jurisdiction

Chapter VII as well as the act, in criminal matters, results not merely from the maxim "all crime is local ", but from the fact that, under normal circumstances, the actor is at the place in which he commits the act. But in the case of civil acts the presence of the actor on the spot is often not essential, and therefore the same localization of the person in the jurisdiction ceases to be essential. It does not follow, because presence within the kingdom is necessary to the consequences resulting from the commission of of a criminal act--trial and infliction of punishment-that such presence is also necessary to the consequences resulting from the performance of a civil act --the coming into existence of a right.

cf. p. 66.

Putting all questions of constructive presence within the jurisdiction on one side, if there were any special consequences, apart from trial, resulting from a criminal act, which might still result although the act were committed abroad-as, for example, Joss of civil rights--there can be no doubt that they would attach, and that the person who had committed the act would be debarred from the further exercise of any rights he possessed in the kingdom. The concrete criminal example is difficult to imagine, as hypothesis has been stretched to the utmost; but it is not difficult to understand that a man beyond the jurisdiction may possess a civil right within it. It is still easier to understand when the law makes the possession of the right dependent on the performance of some formality within the jurisdiction, and which may be performed without the necessity for actual presence.* Once the fundamental difficulty is removed with regard to the localization of the person in the jurisdiction, it is removed law to for aliens as well as for subjects. The existence of the right beconsidered. ing dependent on the perfomance of the required 'act within the

The application of the common

foreigners

jurisdiction, and being independent of residence, it must also be independent of the nationality of the person performing it.

The common law side of the question was dismissed by Lord St. Leonards as irrelevant to the discussion:-"The common law cannot extend to a foreigner resident abroad--the right of a foreigner with regard to damage done to his character, for example, by a person resident in this country is altogether distinct." But By letter or by agent. It the proposition laid down in Jefferys v. Boosey is sound, the registration of the copyright by an agent would not bring the author within the realm, and so within the law- qui facit per alium facit fer se finding no application.

is it so? and is it true to say that the case cited is not an illus- Chapter VII tration of the fact that the common law, in so far as it is possible, does apply to a non-resident foreigner? This question is not a little complicated by the broad rule as to the right of access to the English Courts, which is free to the extreme point, and almost without let or hindrance. The right to bring actions in England for wrongs committed abroad is, on the face of it, a recognition and enforcement of the foreign law on which the action is based; and the fact that a non-resident foreigner may sue a resident foreigner for a slander said in France, is an argument which goes some way to show that protection is not the basis of our law. The fact that actions may be brought by non-resident foreigners for wrongs committed in England, might also be said to result from the fact that the Courts are free. But is it sound to ignore the operation of the English common law on which such actions must in fact be based? For example, a libel in an. English newspaper on a Frenchman in France is actionable in England. Here the tort is committed in England, and, if the common law did not extend to foreigners, this would be a good defence to the action. The case may give rise to a scintilla of doubt as to whether publication in France is necessary, but it clearly does not come within the same category as actions for torts committed abroad. Or, a Frenchman resident in France has bought a race horse in England, and it is injured owing to the negligence of some person in England. Again the tort is committed in England, and, if the common law did not apply to foreigners abroad, again there would be a good defence to the action. This case gives rise to no doubt. Or again, a Frenchman resident in France owns land in England. It is certain that he can recover damages in England for trespass to his land, and that the common law would support his action, although he has never set foot in England.

Of course the common law is territorial in its application: and of course the broad principle must be that foreigners abroad do not come within the scope of its benefits. But circumstances may occur which will entitle them to those benefits. The cases cited are typical of the multitude of such circumstances, and it is submitted that they are the result of a subordinate but definite principle, and are not merely exceptions to the general rule.

Further if in any of these cases the right in question depend

Chapter VII ed on statute instead of the common law, it cannot be admitted that this could make any difference; for both the common law and the statute law are strictly territorial in their application, and the subordinate principle applicable to the common law from its nature must also be applicable to statute law.

We have still to determine what this subordinate principle The appli is and for this purpose as must examine a few statutes giving rights, but which, containing no provision as to the area of their

cation of

certain territorial

statutes to

foreigners examined.

26 & 27

application, are purely territorial.

First, let us consider the operation of such a statute as the India Stock Certificate Act, 1863, by which facilities are given to Vict. c. 73. the holders of India Stock in respect of its transfer and the re ceipt of the dividends. It cannot be questioned that non-resident foreigners, holders of India Stock, are entitled to avail them selves of the facilities for obtaining certificates of title. This sta tute is of special interest in the discussion as, although a non-resident foreigner may obtain the benefit of the Act, yet he would not be liable, under s. 13, for receiving or endevouring to receive abroad a certificate of title under the Act by means of persona. cf. p. 214 tion. Such a case is obviously different from the extra-territorial operation of the penal clauses of the Foreign Marriage Act, considered in the last chapter.

Hypothetical case

Again, take the Settled Estates Act, or the Settled Lands Act, it is hardly to be doubted that their provisions would apply to cases where some of the parties interested were non-resident foreigners, nor that such persons could avail themselves of the benefits of the Acts in cases of estates or settled lands to which they were applicable. The Act in the first case, and the Rules under the Act in the second, expressly contemplate the fact that parties affected by the decision of the Court may be abroad: but these provisions for proceeding in absence relate to the parties affected, and are equivalent to the creation of jurisdiction over them they do not however affect the question of foreigners abroad availing themselves of the provisions of the Acts.

Passing to the question which has already been suggested with reference to the operation of the Married Women's Property Act, it is probable that we have crossed the line, and come to a right-conferring statute whose territorial provisions could Act examin- not apply to non-resident foreigners. Yet even here it is by no means certain that its non-application is not due rather to the

under the
Married
Women's
Property

ed.

interference of other principles of law for it is difficult to ima- Chapter VII gine a case in which the contention that the Act applied to a married woman under such circumstances would not be decided adversely by reference to the law of domicil, or the law of nationality, to the maxim mobilia sequuntur personam, or to the law of the marriage contract. Yet suppose such a case as the following - A married woman, American and residing in the United States, but carrying on the trade of horse dealing in Further exEngland separately from her husband [s. 1, 7], and recovering a case under damages in an action in the English Courts for damage to a the Married horse belonging to her, which damages would, if the Act applies, Property be her separate property [s. 1, iz]. If she afterwards became bankrupt [s. 1, 2], it might conceivably be contended that this provision had been inserted not merely for the benefit of the married woman, but also for the benefit of her English creditors, and that the fact of her being a foreigner abroad should make no difference.

I do not profess even to suggest an affirmative answer to the question; it is a hypothetical case which will serve to indicate the extreme limit of complexity and difficulty of the subject. Nor is it necessary to extend the examination of individual statutes any further. We have enough before us to warrant the application to the statute law of what we have already said with regard to the common law-Of course the statute law is territorial in its normal application: and of course the broad principle must be that foreigners abroad do not come within the scope of its benefits. But circumstances may occur which should entitle them to those benefits. The cases cited are typical of the multitude. of such circumstances, and it is submitted that they also are the result of a definite, though subordinate, principle, and are not merely exceptions to the general rule.

In the case of land and settled estates, the reason on the surface why the statutes should extend to foreigners abroad, is the maxim lex loci rei site. But in the case of personalty, such as stock, this maxim does not apply, but rather the opposite. But in the consideration of the question before us, neither the one maxim nor the other has any place. The familiar maxims are mainly concerned with the subject of jurisdiction. No question of jurisdiction is involved in the question whether, under certain circumstances, any given person can avail himself of the benefits of a statute. Jurisdiction sometimes relates to the thing,

amination of

Women's

Act.

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