CHAPTER VII

EXTRA-TERRITORIAL JURISDICTION

THE essence of political sovereignty is that it is legally CH. VII. omnipotent within its own territory, but that it is legally powerless within the territory of another state'1.

Sove

reignty

territory.

The principle thus laid down has been recognized by the limited to Judicial Committee of the Privy Council, and is also expressed in the maxim of the civil law, extra territorium ius dicenti impune haud paretur. The application of the principle differs as between civil and criminal proceedings.

diction of

With respect to civil proceedings the maxim actor sequitur Civiljurisforum rei which is usually followed in countries governed by English Roman law, is not recognized by English law, and an English courts. civil court has an almost unlimited jurisdiction to decide any matter which may be brought before it, without reference to the nationality or domicile of the litigants, or to the place where the cause of action arose.

In practice, however, English courts usually decline to exercise their civil jurisdiction where the person on whom or property on which the order of the court would operate is beyond the reach of the court, so that the court would only stultify itself by asserting jurisdiction, or where for any reason the court is of opinion that the proceedings might with more propriety have been taken elsewhere.

If, however, a ship comes within the jurisdiction of the High Court of England, the court will under its powers as an

1 Lewis, Foreign Jurisdiction, p. 1. See also p. 8.

2

Papayanni v. Russian Steam Navig. Company (The Laconia), 2 Moore P. C. (N. S.) 161.

CH. VII. Admiralty Court, arrest the ship so as to secure the execution of its orders.

The High Court in England can, upon cause shown, order the defendant in an action to be arrested and to give security not to leave England without leave of the court1. This provision was substituted for the old law of arrest upon mesne process, under which the first proceeding in every action was to arrest a defendant and require him to give security.

An instance will show more clearly the effect of the jurisdiction of English courts.

A foreign ship manned by foreigners is driven by stress of weather into Falmouth; one seaman may sue for his wages in the Admiralty Division of the High Court; another may sue the mate in the King's Bench Division of the High Court for damages for an assault; a third, who has been mutinous and put in irons by the master, may first get his release by habeas corpus, and then bring an action in the King's Bench Division for false imprisonment.

In the admiralty proceedings the ship might be arrested by the court, and in the other proceedings the mate and master might be arrested and required to give security not to leave England.

The master, on the other hand, cannot, until he returns to his own country, take any proceedings to punish the seaman for his mutiny or disobedience of orders, nor even for a crime recognized as such by the laws of both countries, e. g. assault with intent to murder, if it was committed on board the ship beyond the three mile limit.

British ships, especially those which frequent American waters, have been often detained by actions brought, for the sake of extortion, against the ship or her officers on the eve of her departure, by low crimps or their attorneys in the name of some seaman of the ship. These actions usually take the form of actions for wages or assault or false imprisonment, 32 & 33 Vict. c. 62.

1

and as there is usually some process similar to the English CH. VII. one by which either the ship or the master can be arrested and required to give security, the master, to avoid the detention of the ship, is obliged to yield.

Similar cases might arise in England, but in fact rarely do so, because of the practice of the court which is stated in the judgement of the Judicial Committee of the Privy Council as follows:

Their lordships are of opinion that in the case of a suit for wages by seamen for service on board a foreign vessel, the Court of Admiralty has jurisdiction, but that it will not exercise it without first giving notice to the consul of the nation to which the foreign vessel belongs, and that if the foreign consul by protest objects to the prosecution of the suit, the court will determine according to its discretion judicially exercised, whether, having regard to the reasons advanced by the consul, and the answers to them offered on the part of the plaintiff, it is fit and proper that the suit should proceed or be stayed.'

In the case of a collision at sea between two ships, of which one is a British ship, and even in some cases where both are foreign ships, the British Court of Admiralty exercises jurisdiction if either ship has come within the territorial jurisdiction of the court.

The application, however, of the principles and maxims stated above to civil proceedings belongs to what is called private international law, and is a matter of private rather than of public interest, as it mainly affects the private interests of the persons concerned.

jurisdic

courts is

The application of the same principles and maxims to Criminal criminal proceedings raises questions of jurisdiction of more tion of general public importance, especially as the above-quoted English maxim as to sovereignty is only in part true. Owing to local. the increase of commerce and of communication in different countries the citizens of one country travel and reside to

The Nina, L. R. 2 P. C. 38.

CH. VII. a constantly increasing extent in the country of another, and the question of the criminal jurisdiction of a state over its subjects when outside its territory has become of considerable importance.

The civil law maxim has in respect of criminal proceedings its counterpart in English law, under which the jurisdiction to try for crime is purely local.

Under the old English law a man could only be placed on his trial for a crime by the finding of an indictment or accusation on oath against him by a grand jury, i. e. a jury of the freeholders of the county in which the crime was committed, and he was then tried upon the accusation by a petty jury of the inhabitants of the county before the court of assize for the county. And this, notwithstanding various modifications made in modern times, still remains the basis of the English criminal law.

Under that law an English criminal court has a local and not a personal jurisdiction; i. e. it has jurisdiction over offences committed within the limits of the locality where it has jurisdiction, but not over persons who have committed offences outside those limits. The procedure for trial by a grand jury and petty jury is based on this conception of criminal jurisdiction; and the exceptions which have been made to it have had to provide that the jurisdiction shall attach as if the offence had been committed within the local limits.

The Royal Commissions issued periodically under the Great Seal for constituting the courts of oyer and terminer and of gaol delivery (which together are commonly called the court of assize), direct the judges to inquire of and try in each county the offences committed there, and those courts can only try persons indicted by the grand jury of that county; and the grand jury of a county cannot at common law inquire into or indict a person for any offence committed out of the county. The statement of the proper county, the venue as it is termed, forms part of every indictment.

Still less then was it possible for the court of assize to try CH. VII. a person for an offence out of the British dominions. And the ancient expression still used in every indictment, though no longer essential to its validity, that the crime is committed against the peace of our Sovereign Lord the King, his Crown and dignity, is an expression of the doctrine that the offence must be committed within the King's dominions.

The trial, therefore, of British subjects in a British court for offences committed outside of the King's dominions is contrary to the procedure and practice, and to some extent to the theory, of English common law.

persons at

crime.

There are various objections in principle to the trial of Trial of persons for offences at a distance from the locality in which locality of the offences are alleged to have been committed. At the locality the witnesses are usually on the spot, and although the prosecution, with public money at its back, may be able to obtain the presence of those witnesses at a distance from the spot, the person charged is much less able to do so.

Much also of English liberty is due to the fact that a person charged with an offence can only be tried by his neighbours, and when he has the sympathy of those neighbours he can act in politics and oppose the Crown, or the ministers of State, with much more boldness than if he could be tried amongst strangers.

Again, the removal of an accused person from the spot where the offence was committed may in itself be a very great hardship. Persons at a distance may often take a different view of the nature of the offence from those who are on the spot.

The sound principle is that crime should be tried by the authority which has jurisdiction at the spot where the crime was committed 1.

1 See Lewis, For. Jur., pp. 29, 30. Compare on these points Trevelyan's American Revolution, pp. 116, 146. In Ireland, to take a Protestant from Antrim and try him by a Roman Catholic jury in Cork for an offence which aroused religious feeling, or vice versa, might be grossly unjust.