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

But see the qualifying note above, p. 343.

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. 353. 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.

county or place in which the act by reason whereof that person has become accessory has been committed; and in any other case the offence of an accessory to a 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 county or place in which the person being accessory is apprehended, or is in custody, whether the principal felony has been committed on the sea or on the land, or begun on the sea or completed on the land, or begun on the land or completed on the sea, and whether within His Majesty's dominions, or without, or partly within His Majesty's dominions, and partly without. But there is no similar comprehensive enactment with respect to misdemeanours, and it is obvious that different considerations would apply in the case of such breaches of statutory regulations as are not necessarily offences by the law of another country. As to offences committed in foreign territory and instigated or aided in England, questions of great importance and delicacy have arisen. These questions were raised in the famous case of R. v. Bernard1, and are touched on by the late Mr. Justice Stephen in his History of Criminal Law. His conclusion is that, whatever may be the merits of the case legally, it seems to be clear that the legislature ought to remove all doubt about it by putting crimes committed abroad on the same footing as crimes committed in England, as regards incitement, conspiracy, and accessories in England. Exceptions might be made as to political offences, though I should be sorry if they were made wide 2.' The English legislature has, however, never gone so far as to adopt these conclusions in general terms, though it has declared the law in particular cases. Thus, with respect to murder and manslaughter, the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100, ss. 4, 9), has enacted in substance that persons who conspire in England to murder foreigners abroad,

1 Foster and Finlason, 240 (1858); 8 State Trials (N. S.) 887.

2 Vol. ii. p. 14.

or in England incite people to commit murder abroad, or become in England accessories, whether before or after the fact, to murder or manslaughter committed abroad, shall be in the same position in every respect as if the crime committed abroad had been committed in England.

As to theft, it was decided in 1861 1, on a question which arose under an Act of 1827 (7 & 8 Geo. IV, c. 29), that where goods are stolen abroad, e. g. in Guernsey, there could not be a conviction for receiving the goods in England, and this decision was considered applicable to cases under the Larceny Act, 1861 (24 & 25 Vict. c. 96), by which the Act of 1827 was replaced. This loophole in the criminal law has now been stopped by the Larceny Act, 1896 (59 & 60 Vict. c. 52), which punishes receipt in the United Kingdom of property stolen outside the United Kingdom. A similar question arose at Bombay in 1881 2 on the construction of ss. 410 and 411 of the Indian Penal Code; and it was held by the majority of the Court that certain bills of exchange stolen at Mauritius, where the Indian Penal Code was not in force, could not be regarded as stolen property within the meaning of s. 410 so as to make the person receiving them at Bombay liable under s. 411. In order to meet this decision, Act VIII of 1882 amended the definition of stolen property in s. 410 of the Penal Code by adding the words 'whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without British India.' The arguments and judgements in the Bombay case deserve study with reference not merely to the existing state of the law, but to the principles on which legislation should proceed. Legislation with respect to offences committed in foreign territory and instigated or aided in British territory will require careful consideration, especially in its application to foreigners, and with reference to minor offences, which may be innocent acts under the foreign law.

1 Reg. v. Debruiel, 11 Cox C. C. 207.

2 Empress v. S. Moorga Chetty, I. L. R. 5 Bom. 338.

Jurisdic

Under the Orders in Council made in pursuance of the Foreign successive Foreign Jurisdiction Acts British courts have tion Acts. been established and British jurisdiction is exercised in numerous foreign territories in respect not only of British subjects, but of foreigners, i. e. in cases to which Parliamentary legislation would not ordinarily extend. But this jurisdiction, though recognized, confirmed, supported, and regulated by Acts of Parliament, derives its authority ultimately, not from Parliament, but from powers inherent in the Crown or conceded to the Crown by a foreign State 1.

consular

tion.

The jurisdiction arose historically out of the arrangements Original of which have been made at various times between the Western jurisdicPowers and the rulers of Constantinople. These arrange- The capiments date from a period long before the capture of Con- tulations. stantinople by the Turks. As far back as the ninth and tenth centuries the Greek Emperors of Constantinople granted to the Warings or Varangians from Scandinavia capitulations or rights of extra-territoriality, which gave them permission to own wharves, carry on trade, and govern themselves in the Eastern capital. The Venetians obtained similar capitulations in the eleventh century, the Amalfians in 1056, the Genoese in 1098, and the Pisans in 1110, and thenceforward they became extremely general. When the Turks took Constantinople they did little to interfere with the existing order of things, and the Genoese and Venetian capitulations were renewed 2. The first of what may be called the modern capitulations was embodied in the Treaty of February, 1538, between Francis I of France and Soliman the Magnificent.

1 The first and most important section of the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37), is in form a declaration as well as an enactment. Section 2 is in form an enactment only, and possibly the difference was intentional.

See the Introduction by J. Theodore Bent to Early Voyages and Travels in the Levant, pp. ii, iii-Publications of the Hakluyt Society. Mr. Rashdall has drawn an interesting parallel between the self-governing communities of foreign merchants in Oriental countries and the self-governing communities of foreign students which, at Bologna and elsewhere, were eventually developed into Universities (Universities of Europe in the Middle Ages, i. 153). As to the jurisdiction over students at Bologna, see ibid. pp. 178 sqq.

This treaty, although, as has been seen, it embodied no new principle, yet from another point of view marked a new and important departure in international law, if and so far as international law can be said to have existed at the beginning of the sixteenth century. The modern capitulations negatived the theory that the 'infidel was the natural and necessary enemy of a Christian State, and admitted the Mahomedan State of Turkey for limited purposes into the family of European Christian States. At the same time they recognized the broad differences between Christian and Mahomedan institutions, habits, and feelings by insisting on the withdrawal from the jurisdiction of the local courts of Christian foreigners who resorted to Turkish territory for the purposes of trade, and by establishing officers and courts with jurisdiction over disputes between such foreigners.

The principles on which separate laws and a separate jurisdiction have been at times different and in different countries claimed on behalf of Western foreigners trading to the East were enunciated, many generations afterwards, by Lord Stowell in a passage which has become classical:

It is contended on this point that the King of Great Britain does not hold the British possessions in the East Indies in right of sovereignty, and therefore that the character of British merchants does not necessarily attach on foreigners locally resident there. But taking it that such a paramount sovereignty on the part of the Mogul princes really and solidly exists, and that Great Britain cannot be deemed to possess a sovereign right there; still it is to be remembered that wherever even a mere factory is founded in the eastern parts of the world, European persons trading under the shelter and protection of those establishments are conceived to take their national character from that association under which they live and carry on their commerce. It is a rule of the law of nations, applying practically to those countries, and is different from what prevails ordinarily in Europe and the western parts of the world, in which men take their present national character from the general character of the country in which they are resident. And this distinction arises from the nature and habit of the countries. In the western parts of the world alien merchants mix in the society of the natives; access and intermixture are permitted; and they become incorporated to almost the full extent. But in the East, from the oldest times, an immiscible character has been kept up; foreigners are not admitted into the general body and mass of the society of the nation ;