at sea.

(1) The exercise by English courts of jurisdiction in Offences respect of offences committed on the high seas arises from the necessities of the case, i. e. from the absence of territorial jurisdiction. These offences, being committed outside the body of any English county, could not be dealt with by the ordinary criminal courts of the country, in the exercise of their ordinary criminal jurisdiction. They were originally dealt with by the court of the admiral, but are now, under various enactments, triable by ordinary courts of criminal jurisdiction as if committed within the local jurisdiction of those courts 1.

The jurisdiction extends to offences committed on board a British ship, whether the ship is on the open sea or in foreign territorial waters below bridges, and whether the offender is or is not a British subject or a member of the crew, and although there may be concurrent jurisdiction în a foreign court 2. The principle on which Parliament exercises legislative, and the courts judicial, powers, is that a British ship is to be treated as if it were an outlying piece of British territory 3. Theoretically, Parliament might, without bringing itself into conflict with the rules of international law, legislate in every case in respect of an offence committed by a British subject on board a foreign ship when on the high seas. But it has abstained from doing so in cases where the British subject is a member of the crew of the foreign ship, because he may be treated as having accepted foreign law for the time, and because of the practical difficulties which would arise if members of the same crew were subject to two different laws in respect of the same offence. The principles on which Parliament has exercised its legislative powers with respect to offences on board ship are 1 See 4 & 5 Will. IV, c. 36, s. 22; 24 & 25 Vict. cc. 94 and 97; 57 & 58 Vict. c. 60, s. 684; and as to the Colonies, 12 & 13 Vict. c. 96.

2 R. v. Anderson, L. R. 1 C. C. R. 161; R. v. Carr, 10 Q. B. D. 76. The rule is subject to modifications in the case of alien enemies, or aliens on board English ships against their will. See Stephen, History of the Criminal Law, ii. 4-8.

The analogy is not complete. For instance, a British ship in foreign territorial waters is, or may be, subject to a double jurisdiction.

12 & 13 Vict. c. 96.

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 (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.

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 sive Subpart of the King's dominions or by any British subject else- Act. where.

stances

and

(6) Offences such as forgery and perjury, when committed Forgery with reference to proceedings in English courts, are triable perjury. by those courts (see, e. g., 52 & 53 Vict. c. 10, s. 9).

(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

1 Stephen, History of the Criminal Law, ii. 2.

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 :(1) Natural-born British subjects; and

(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).

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 Parliament1 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,

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.

6

1 For a discussion of the difficult questions which have been raised as to the effect of the statutory provisions under which certificates of naturalization 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. Naturalization of aliens in India is provided for by Act XXX of 1852, which must be read with reference to the later imperial Act of 1870.

2 See Minutes by Sir H. S. Maine, No. 97.