12 & 13 illustrated by ss. 686 and 687 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), which run as follows: '686.—(1) Where any person, being a British subject, is charged with having committed any offence on board any British ship on the high seas, or in any foreign port or harbour, or on board any foreign ship to which he does not belong, or, not being a British subject, is charged with having committed any offence on board any British ship on the high seas, and that person is found within the jurisdiction of any court in Her Majesty's dominions, which would have had cognizance of the offence if it had been committed on board a British ship within the limits of its ordinary jurisdiction, that court shall have jurisdiction to try the offence as if it had been so committed. (2) Nothing in this section shall affect the Admiralty Offences Vict. c. 96. (Colonial) Act, 1849. '687. All offences against property or person committed in or at any place either ashore or afloat out of Her Majesty's dominions by any master, seaman, or apprentice, who at the time when the offence was committed is, or within three months previously has been, employed in any British ship, shall be deemed to be offences of the same nature respectively, and be liable to the same punishment respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if those offences had been committed within the jurisdiction of the Admiralty of England; and the costs and expenses of the prosecution of any such offence may be directed to be paid as in the case of costs and expenses of prosecutions for offences committed within the jurisdiction of the Admiralty of England.' Section 689 gives powers of arrest, &c., in cases where jurisdiction may be exercised under s. 687. It will be observed that s. 686 draws a distinction between British subjects and others, and between British subjects who do, and those who do not, belong to a foreign ship. The terms in which s. 687 are expressed are very wide, and it is possible that English courts in construing them would limit their application with reference to the principles of international law. See the remarks in R. v. Anderson, where the case was decided independently of the enactment reproduced by this section.1 Piracy by the law of nations, committed on the open sea, whether by a British subject or not, is triable by an English court under the criminal jurisdiction derived from the Admiralty. But this jurisdiction is not conferred by any special statute. As to what constitutes piracy jure gentium, see Attorney-General for the Colony of Hong Kong v. Kwok-a-Sing, L. R. 5 P. C. 179, 199 (1873), and Stephen, History of the Criminal Law, ii. 27. (2) Treason committed abroad is triable in England under Treason. an Act of 1543-4 (35 Henry VIII, c. 2). Treason, if committed in the territory of a foreign State, may very possibly not be an offence against the law of that State, and therefore not be punishable by the courts of that State. and man (3) Murder committed by a British subject in foreign Murder territory was made triable in England under a special com- slaughter. mission of oyer and terminer by an Act of Henry VIII (33 Henry VIII, c. 23). It was by a special commission under this Act that Governor Wall was, in 1802, tried and convicted of a murder committed in 1782.1 The Act was extended by an Act of 1803 (43 Geo. III, c. 113, s. 6) to accessories before the fact and to manslaughter. Both these enactments were repealed by an Act of 1828 (9 Geo. IV, c. 31), which re-enacted their provisions with modifications as to procedure. The Act of 1828 was repealed and reproduced with modifications by an enactment in one of the consolidating Acts of 1861 (24 & 25 Vict. c. 100, s. 9), which is the existing law. trade (4) Offences against the Slave Trade Acts are triable by Slave English courts if committed by any person within the King's offences. dominions or by any British subject elsewhere (see 5 Geo. IV, c. 114, ss. 9, 10). (5) Offences against the Explosive Substances Act, 1883 Offences against (46 & 47 Vict. c. 3), i.e. offences by dynamiters, are triable Exploby English courts when committed by any person in any part of the King's dominions or by any British subject Act. elsewhere. sive Substances (6) Offences such as perjury and forgery are triable where Perjury and the person charged is apprehended or in custody. See s. 8 of forgery. the Perjury Act, 1911 (3 & 4 Geo. V, c. 6) and s. 14 of the Forgery Act, 1913 (3 & 4 Geo. V, c. 27). (7) Under s. 57 of the Offences against the Person Act, 1861 Bigamy. (24 & 25 Vict. c. 100), bigamy is punishable in England or Ireland, whether the bigamous marriage has taken place in England or Ireland or elsewhere, but the section does not Stephen, History of the Criminal Law, ii. 2. 1 Enlist extend to any second marriage contracted elsewhere than in England or Ireland by any other than a subject of His Majesty. Foreign (8) The Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90), ment Act. is declared by s. 2 to extend to all the dominions of His Majesty, including the adjacent territorial waters, and some of its provisions, e.g. ss. 4, 7, extend to offences committed by any person being a British subject within or without His Majesty's dominions. The construction and operation of this Act were commented on in the case of R. v. Jameson, [1896] 2 Q. B. 425. Classes of British subjects. British subjects in the proper sense are of two classes (2) Naturalized British subjects. Every person born within the King's dominions, whether of British or of foreign parents, is a natural-born British subject, unless he has renounced his British nationality in manner provided by s. 4 of the Naturalization Act, 1870 (33 & 34 Vict. c. 14). 1 Persons born out of the King's dominions whose fathers or grandfathers in the male line were natural-born British subjects are also by Act of Parliament 1 natural-born British subjects, subject to certain exceptions and qualifications, unless they have renounced their British nationality in manner provided by law. Naturalized British subjects may have become so either by virtue of the imperial Naturalization Act of 1870, or by virtue of the law of a British possession. The rights of aliens naturalized under the imperial Act are not expressed by the Act to extend beyond the United Kingdom (s. 7). Naturalization by virtue of the law of a British possession does not operate beyond the limits of that possession. But it would seem that the holders of certificates of naturalization granted either under the imperial or under a colonial Act, 25 Edw. III, stat. 2; 7 Anne, c. 5, s. 3; 4 Geo. II, c. 21; 13 Geo. III, 1 C. 21. are entitled to claim British protection in all foreign countries other than their country of origin.1 The rights of an alien to whom a certificate of naturalization is granted under the Act of 1870 are subject to the qualification that he is not, when within the limits of the foreign State of which he was the subject previously to obtaining his certificate of naturalization, to be deemed to be a British subject, unless he has ceased to be a subject of that State in pursuance of the laws thereof, or of a treaty to that effect (33 & 34 Vict. c. 14, s. 7). A child born abroad of a father or mother (being a widow) who has obtained a certificate of naturalization in the United Kingdom is, if during infancy he becomes resident with the parent in the United Kingdom, to be deemed a naturalized British subject (see 33 & 34 Vict. c. 34, s. 10 (5) ). In many of these cases there may be a double nationality. This is specially apt to occur in the case of the children or grandchildren, born abroad, of British subjects. The Acts which gave such persons the status of British subjects were passed for a special purpose, are apt to cause conflicts of law, and are not always suitable to Oriental circumstances. Enactments of this kind ought, it may reasonably be argued, to be construed secundum materiam. It appears to have been held at one time that the expression 'natural-born subjects' is, in the statutes affecting India, always taken to mean European British subjects,2 and, although this position can no longer be maintained in its entirety (see, e.g., 21 & 22 Vict. c. 106, s. 32), there is ground for argument that it may be construed subject to restrictions in its application to descendants of non-European subjects of the Crown. 1 For a discussion of the difficult questions which have been raised as to the effect of the statutory provisions under which certificates of naturaliza tion are granted, and particularly as to the construction of s. 7 of the Naturalization Act, 1870, see the Report of the Interdepartmental Committee on the Naturalization Laws, 1901; Cd. 723. The Act of 1870 is now superseded by the British Nationality and Status of Aliens Act, 1914. Naturalization of aliens in India is provided for by Act XXX of 1852, which must be read with reference to the later imperial Acts. 2 See Minutes by Sir H. S. Maine, No. 97. Conclu sions as The conclusions to be drawn from the enactments and the to Parlia- reported decisions appear to be mentary legislation for extraterritorial offences. (1) It would not be consistent with the principles of international law regulating the relations between independent civilized States 1 for English courts to exercise, or for Parliament to confer, jurisdiction in respect of offences committed by foreigners in foreign territory. I am not aware,' says the late Mr. Justice Stephen, ́of any exception to the rule that crimes committed on land by foreigners out of the United Kingdom are not subject to the criminal law of England, except one furnished by the Merchant Shipping Act of 1854 (17 & 18 Vict. c. 104, s. 267). There may be exceptions in the orders made under the Foreign Jurisdiction Acts.' 2 (2) English courts are unwilling to exercise, and Parliament is unwilling to confer, jurisdiction in respect of offences committed by British subjects in foreign territory, except in special classes of cases. With respect to offences committed in British territory and abetted in foreign territory, or vice versa, it is difficult to lay down any general proposition which does not require numerous qualifications. In the case of felonies committed in England or Ireland and aided in foreign territory, the law is settled by the Accessories and Abettors Act, 1861 (24 & 25 Vict. c. 94, s. 7), which enacts that where any felony has been completely committed in England or Ireland, the offence of any person who has been an accessory, either before or after the fact, to the felony, may be dealt with, inquired of, tried, determined, and punished by any court which has jurisdiction to try the principal felony, or any felonies committed in any 1 But see the qualifying note above, p. 373. 2 History of the Criminal Law, ii. 12. Section 267 of the Act of 1854 is now represented by s. 687 of the Act of 1894 noticed above. As to the orders under the Foreign Jurisdiction Acts, see below, p. 383. There may also be an exception in the case of a breach of duty to the Crown committed abroad by a foreign servant of the Crown. |