Extra-territorial These statutes are supplementary to those which are expressly tcf. Section VII, applied to foreign jurisdiction by sections therein contained. Statutes: B; p. 107. 53&54 Vict. c. 27. cf. p. 119. 12 Geo. III, c. 24. 42 Geo. III, c. 85. cf. p. 155. 46&47 Vict.c.3. 48 49 Vict.c.69. 24 & 25 Vict. C. 100. McLeod v. A.-G. They are as follow: those dealing with treason and sedition: the Slave Trade Acts-dealt with specifically under the Colonial Courts of Admiralty Act, 1890: the Dockyards Protection Act, 1772; though practically only in so far as it deals with setting on fire or otherwise destroying the King's ships of war afloat, or building or repairing by contract in any private yard for the use of the King: or military, naval or victualling stores, or any place where such stores are kept: the Offences by Public Officers Act, 1802, which deals with offences committed abroad by persons in the service of the Crown, "in any civil or military office, station or capacity, out of Great Britain": the Foreign Enlistment Act, 1870-dealt with specifically by the Neutrality Orders in Council: the Explosive Substances Act, 1883; which deals with unlawfully and maliciously causing, by an explosive substance, an explosion in the United Kingdom of a nature likely to endanger life or to cause serious injury to property, the act being committed within or without the dominions: together with kindred offences, including those committed by accessories. the Criminal Law Amendment Act, 1885, which deals with procuration, and with procuring defilement of women by threats or fraud, or administering drugs. Finally, there are the express provisions of the Offences against the Person Act, 1861, ss. 4, 9, and 10, of which deal with murders and manslaughters committed abroad; and s. 57 with bigamy, whether the second marriage shall have taken place in England or elsewhere. With regard to this latter provision, however, it seems probable that the principle on which McLeod v. A.-G. of New South Wales was decided, would be as applicable to foreign jurisdiction as to colonial legislation, and the section held inapplicable to Consular Courts. * All these statutes are set out and analysed in Nationality," Vol. II; Chap. II, which deals with "The Substance of the Extra-territorial Criminal Law of England." statutes only to sular Courts. Although the extra-territorial provisions of these statutes Extra-territorial enable them to be enforced territorially when the offence is com- be enforced terrimitted in the oriental country, these provisions making them in torially by Coneffect "Applied Acts," their extension does not confer on the Consular Courts any jurisdiction when the offences are committed beyond the limits of that country. High Sea Legislation of the United Kingdom. The high sea legislation of the United Kingdom consists of High sea statutes. the Piracy Acts, which are specially dealt with by art. 72 of f. p. 134. the China Order: the Offences at Sea Acts, which, except s. 1 of the Act of 1799, deal with the procedure for trial of offences committed 28 Hen. VIII, on the high sea: the Post Office (Offences) Act, 1837, which provides for the trial of offences against the Post Office Acts, when committed at sea: c. 15. 7 Will. IV & 1 Vict. c. 36. the Wild Birds Protection Act, 1889, which extends the penal- 43 & 44 Vict.c. 35. ties under the Act to offences committed at sea: and cc. 96 to 100. the Admiralty jurisdiction sections of the Criminal Law Con- 24 & 25 Vict. solidation Acts, 1861, which make all the offences dealt with by the Acts triable in England when committed at sea. The jurisdiction of the Consular Courts over high sea offences is specially dealt with by s. 14 of the Foreign Jurisdiction Act, and art. 8o of the China Order, in respect of offences committed of. p. 63. in vessels within 100 miles from the coast of China: and also by the application and adaptation of the Admiralty Offences (Colonial) Acts of 1849 and 1860, and Part XIII of the Merchant Shipping of. pp. 84, et seq. Act, 1894. In connexion with the present question the most important point arises from the adaptation of s. 686 of the Merchant Ship ping Act†, which deals generally with any offence committed by [set out on a British subject on board any British ship' on the high seas or in P. 66.] any foreign port or harbour, or on board any foreign ship to which he does not belong. There is in this case a special adaptation in art. 39 (ii) of the Order, which does not do much more of. p. 65. than introduce certain verbal alterations into s. 686. But high sea offences are also dealt with by s. 1 of the Offences at Sea Act, 1799, and by the Admiralty jurisdiction sections of the 28 Hen. VIII, Criminal Law Consolidation Acts, 1861, above referred to. c. 15. The combined operation of these three enactments has been tef." Nationality," fully analysed in another work †, and the question which still Vol. II, Chap. III, awaits decision has been stated as follows:-"Is the application of the general criminal law to the high seas now governed solely by s. 686 of the Merchant Shipping Act?" pp. 143, et seq. High sea jurisdiction of Consular Courts. Carr v. Fracis at p. 198. The occasion for solving this question may arise when an offence in a British ship on the high seas comes to be tried before a Consular Court. There can, I think, be little doubt that the adaptation of s. 686 by art. 39 (ii) of the Order in Council, does not of itself oust the application to the Consular Courts of the other branches of English high sea legislation. Then comes the further question whether this extension of high sea legislation to the Consular Courts is justified, or whether the principle that those Courts can exercise no extra-territorial jurisdiction overrides it. In the first place, the "extent of jurisdiction" as defined by art. 5 (5) of the Order, includes only "British ships with their boats; and the persons and property on board thereof, or belonging thereto, being within the limits of the Order," which of itself appears to preclude the exercise of any jurisdiction by the Consular Courts in respect of offences on British ships on the high seas. But putting this definition on one side, and considering the question from the standpoint whether such jurisdiction can be exercised or not, I am disposed to think that it may be justified by sufferance on very broad grounds. Jurisdiction over subjects in ships carrying the flag on the high seas is claimed by every civilised State. Having regard to the respect with which the local jurisdiction of the Courts was treated in the Muscat case: having further regard to the views expressed by the Judicial Committee in A.-G. for Hong Kong v. Kwok-a-Sing in connexion with the laws of China on the subject of piracy, we are justified in saying that the States with which exterritorial treaties are concluded are assumed to deal with such matters on the same lines as civilised States, and, therefore, to know of the existence of so universal a practice. If the oriental State itself exercised a similar jurisdiction on the high seas over its subjects there could be no difficulty in making the latter assumption. But even without this, it is suggested that this assumption is warranted. The question may be put on precisely the same footing as the exercise of the King's jurisdiction in the territorial waters of the oriental State. They are properly included in the "limits of the Order," because the oriental Sovereign is assumed to claim jurisdiction over them as all Sovereigns may. And so, it is submitted, may the King's jurisdiction be exercised by the Consular Courts over British subjects in British vessels on the high seas, because the oriental Sovereign may be assumed to exercise jurisdiction over his own subjects in ships carrying his flag as all other Sovereigns in fact do. The question of high sea jurisdiction over foreigners in British ships does not arise, as the Consular Courts have no jurisdiction at all over foreigners in criminal cases. Deportation. deportation Deportation is provided as a punishment for certain offences Cases in which created by Order in Council; it is also resorted to for the pur- authorised. poses of trial and execution of sentence. It will be convenient to summarise the cases in which accused or convicted persons may be deported. Foreign Jurisdiction Act, s. 6: persons charged with offences f. p. 55. Foreign Jurisdiction Act, s. 7: persons convicted by a Con- f. p. 57. Foreign Jurisdiction Act, s. 8: persons convicted of an offence cf. p. 58. be punished by deportation. Fugitive Offenders Act, 1881: fugitive offenders from the c. p. 98. dominions may be apprehended on an endorsed warrant and surrendered. Colonial Prisoners Removal Act, 1884: prisoners undergoing cf. p. 103. sentence in a consular prison may be removed to the United Kingdom or a colony to complete the sentence. The subject of deportation may, therefore, be considered under the following heads (a) in respect of offences not committed in the oriental country: (d) as a punishment for certain offences. Each of these raises questions of principle which require to be carefully examined, for they each, in the absence of treaty warrant, infringe some sovereign right of the oriental State: and the case for sufferance is not very clear in all of them. The principles involved have already been so fully discussed that it will only be necessary to refer to them very briefly. A-Offences not committed in the Oriental Country. Offences under this group are those committed in British territory, where the offender has escaped to the oriental country, his return following his arrest in that country on a warrant endorsed by the Consular Court. Technically this is not "deportation," because action is taken in these cases in virtue of the extension 44& 45 Vict. c. 69. of the Fugitive Offenders Act, 1881, to the oriental country as if it were a British possession. But the consequences are the same, and it is convenient to consider the question in connexion with deportation strictly so called. This Act extends the principles of extradition to our colonial Empire, and the application of it to foreign jurisdiction brings oriental countries into the scheme of colonial extradition, thereby denying to those countries any voice in the matter. There can be little doubt that Infringement of this infringes what is known as the "right of asylum": that right of asylum of oriental country. Sovereign right, possessed alike by civilised and uncivilised, Christian and Mahommedan States, to protect all who come within their borders. There is a right to refuse to surrender, as well as a right to surrender, criminals to their own Governments: and the right to demand the surrender can only be acquired by treaty. The extension of the Act of 1881, is, however, not even a demand of the right of extradition, but a claim to exercise that right by our own officers, tacked on to the grant of exterritorial rights. Sufferance must be looked to in support of it, and I cannot refrain from expressing the opinion that the strongest evidence of the existence of the ingredients of sufferance, knowledge, assent or acquiescence, would be required by a Court before which the practice was challenged. It has the appearance of interpreting the reference in the Foreign Jurisdiction Act to "the cession or conquest of territory" too literally. In a very modified form, extradition is mentioned in two treaties, but in these it involves only a surrender of criminals to the oriental country. |