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[3 Strange, 733.]
[6 St. Tr.: N. S. 21.]
But even this corollary has limitations of its own. It does not follow, because a foreigner in England is admittedly subject to the laws of England, and an Englishman in a foreign country to the laws of that country, that therefore the country of origin. in either case abandons its own authority over its subject. If any act be an offence by the extra-territorial laws of that country, as well as by the laws of the country in which the act has been committed, it does not follow that the offender may not be put upon his trial when he comes within reach of the laws of his own country. If he has been tried in the foreign country, the effect of the foreign verdict may be the subject of special legislation, or of judicial ruling. In England the Courts have worked out a principle for themselves: and acting on the fundamental rule that a man may not be twice in jeopardy for the same offence, have extended the scope of the defences autrefois acquit and autrefois convict, to acquittals and convictions by foreign Courts administering foreign laws (per Lord Chancellor King in Burrows v. Femino); limiting (as it would appear from the reasoning of Crosswell J. in R. v. Azzopardi), their own enquiry to the question, whether the offence with which the accused is charged is of the same gravity as that for which he has already stood his trial abroad.
Beyond this point, with the exception of national ships on the high seas, agreement as to the proper scope of extra-territorial legislation ceases. Some countries require obedience to all laws from subjects wherever they may be. The English principle has been to limit this extra-territorial obedience to laws dealing with the gravest offences-high treason and murder; and to certain others which the occurrences of the moment have shown to be expedient, such as, in old days sedition, and incitement to mutiny in modern times, those dealing with explosive substances, and with the protection of women and girls from kidnapping for purposes of prostitution? It cannot even be said that there is any agreement that extra-territorial laws should be limited to the subjects of the nation which enacts them. This question is a thorny one, and much argument must be devoted to unravelling it. In the opinion of the author, the law of England has not hesitated, in the case of high treason, to extend its operation to foreigners abroad; and this, as will be seen in the course of the enquiry, is not the only example.
The examination of such a question as the one I have just Introduction. propounded-What is the legitimate scope of extra-territorial legislation ? takes us into the region of first principles, and there we find little unanimity of opinion. The question has been approached often: suggestions have been thrown out as to what the principles are, or at least ought to be: but there is no definite decision covering the whole ground. As a rule the question. has been avoided, wherever it has been found unnecessary to apply any principle to its full extent. The inevitable consequence of this is, that so far as the ultimate principle itself is concerned, the dicta may always be treated as obiter. Another difficulty, not uncommon in English law, stands in the way of a clear statement of the law. Such a question can only be solved by a process of evolution in which the Judges of many periods must take their share. It is inevitable that the older opinions must be abandoned in favour of those which have resulted from a longer study of the subject by the Judges; but there is a reluctance to admit the necessity. In no branch of law, I think, is this more noticable than in the present case: the most striking example occurring in connection with the question of a foreigner's right to copyright in this country.
Much of the discussion turns on questions which were dealt with in the Lord Chief Justice's judgment in the "Franconia" case. The main thread of argument was elaborated with infinite learning and care but many questions which lay on the outer edge of the subject were referred to, which could not be treated with the same elaboration.
The main question with which Sir Alexander Cockburn dealt was the existence or non-existence of the 3-mile limit. Of the subordinate questions, one was of the greatest importance Was there any jurisdiction inherent in the Admiral to deal with foreigners on board foreign ships on the high sea ? The importance of the first question has passed away, as it is now governed by statute. Whether the second question has not also passed into the region of statutory law is a point which the Court might have decided in Anderson's case: but it was avoided.
Perhaps the most curious point in connection with the Chief Justice's judgment is, that the concentration which he brought to bear on the question of high sea jurisdiction over foreigners, thrust out of sight the more important question of high sea juris
Introduction diction over British subjects. One of the principal points to which the present enquiry will be directed is to ascertain what the law is with regard to British subjects on board foreign ships. Putting this question into practical shape, it may be stated thusDoes a British subject, by going on board a foreign vessel, escape from that important consequence of his nationality, obedience to the English law of the high sea?
The scope of this part of the book as follows:
In the first chapter I have taken a broad survey of the principles of extra-territorial law, more especially in connection with the high sea. It is not very systematic; but is rather a collection of detached principles, more or less inchoate, which are independent of express enactment, or of which certain special legislation is the embodiment. It might fittingly be called an enquiry into the Common Law of the sea. In the second chapter I have given so much of the substance of the extra-territorial laws of England as is required to understand each branch of the question, and as it is necessary to refer to in the succeeding chapters. Taking these texts, the third Chapter is devoted to an analysis of the legislation, in order to determine the persons to whom, and the area over which, this legislation applies and also the jurisdiction of the Courts as to the trial of offences. This analysis is tested in the fourth chapter by the application of the principles to the several details of the statutes.
The fifth chapter is devoted to the legislation affecting the territorial waters.
The extra-territorial extensions of the criminal law being exhausted, I have taken, in the sixth chapter, a survey of extraterritorial legislation as a whole, and have specially examined the questions of extra-territorial marriages, wills, oaths and the taking of evidence. In the seventh chapter, the enjoyment by persons abroad of territorial rights in the United Kingdom is considered, mainly by the light of the two leading cases on the law of copyright. The extra-territorial effect of the law of bankruptcy forms the subject of a special chapter : and finally, in the ninth chapter I have examined the interesting question of the extension of jurisdiction seaward for the purposes of creating and protecting the home sea-fisheries.
The Principles of Extra-territorial Law.
It is important at the outset to dissipate a fallacy which was Chapter I stated as law by Broom in his "Legal Maxims ", and which A fallacy in has been allowed to remain in later editions. "Although a Bri- Broom's Legal tish subject may ", says the learned author, “in certain cases, Maxims" forfeit his rights as such by adhering to a foreign Power, he yet considered. remains at common law always liable to his duties and if, in the course of such employment, he violates the laws of his native country, he will be exposed to punishment when he comes within reach of her tribunals ".
It will be observed that the statement deals with British subjects who are naturalized in foreign countries. If it were true of them, it would, a fortiori, be true of non-naturalized British subjects abroad. Since 1870, it is certainly untrue as to British subjects naturalized in a foreign State. But at no time was it true even of British subjects abroad; and the only way of giving it an accurate meaning is to omit all reference to naturalization, and to limit it to those laws which profess to have an extra-territorial application. The fallacy is of course based on a misconception of the meaning which the maxim nemo potest exuere patriam formerly had, and also of the true consequences of nationality and meaning of allegiance.*
The fundamental principle of territoriality of legislation has existed quite as long as the maxim, and was in force concurrently with it. Adherence to a foreign Power prior to 1870 did not involve loss of British nationality; but if the adherence were abroad, and it could not well be otherwise, the fact that the person remained a British subject in spite of naturalization, did not make him owe obedience generally to the laws of his own country but only in so far as they professed to bind him being abroad.
*Lord Halsbury C., seems to have adopted this statement of Broom's in his judg- [L. R. 1901, ment in Cooke v. Charles A. Vogeler Co., where he says “an Englishman by reason A. C. at of his nationality is subject to the laws of his Sovereign wherever he may be ": the p. 108.] dictum must however probably be read subject to the modification suggested in the
The earlier expositions of the law of exterritoriality were based on a kindred fallacy, which has been considered at length in my book on “ Exterritoriality ".
This leads us naturally to the statement of the first principle which governs extra-territorial law, which is, that it depends principles now entirely on statute. That obedience to the statute has taken governing the place of allegiance to the King, is the maxim with which we started; and it does not affect the truth of that maxim if we add to it this that in the case of extra-territorial legislation, obedience to the statute is based on allegiance to the King. The omnipotence of Parliament is from its nature territorial, whilst allegiance to the King can have no limitation as to territory, but only of fact-whether a person is a subject or not.
cation of the
The second fundamental principle is that the duties imposed by extra-territorial laws applicable to subjects in foreign countries are of imperfect sanction, and breaches of them cannot be made a ground for extradition; for the treaties only apply to offences committed within the State applying for extradition of an offender, or on the high seas. And unless it be by means of the procedure for outlawry, which has been allowed to slumber since 1859*, and the consequent forfeiture of property, they must remain a dead letter until the offender choose to return to this country. Neither the laws of England nor of other States allow him to be arrested by British police officers in a foreign country and it seems fairly certain that the English Courts look with no favourable eye upon his being decoyed to a place where the British police might lawfully arrest him.
So far I have referred only to legislation which applies to torial appli- persons beyond the realm: but there is another point of equal importance, the application of the common law to such persons. As has already been stated the common law does not apply to subjects in foreign countries, nor, with the solitary exception of the prerogative writ of return, can it be said that it ever professed to. The extent of its application to persons on the high sea is however by no means free from difficulty, and the enquiry leads to the ultimate question whether the law of the sea is lawlessness. The centre of interest is of course the law maritime in its application to ships: but this does not exhaust the subject, for many questions which arise at sea must fall to be decided by the common law, or failing this, by no law at all.
‡In R. v. Keyn, Cockburn C. J. uses the expression “allegiance to the law ". *This date is given in the "New Encyclopedia" as that of the last occasion when outlawry was resorted to. The subject will be more fully discussed at a later stage.