If the offence be against the welfare and safety of the State, whether it has been committed by a Frenchman or a foreigner :-II. With respect to private offences in cases where the following conditions are combined

1. That the offence be of sufficient gravity to constitute a crime.

2. That it has been committed by a Frenchman against a Frenchman. 3. That the offender has returned to France.

4. That he has been indicted in France by the injured party.

In the United States of North America, and in the British dominions, the rule of confining penal justice to the territory, in which the offence has been committed,(i) has been most rigidly adhered to. But the latter country has so far *relaxed the severity of her adherence to this strict rule of International Law as to allow crimes of murder [*358] and manslaughter committed out of England, when both the offender and the offended are subjects of the British crown, and when this fact has been averred in the indictment, to be tried in England. Whether they must be British-born subjects appears to be a doubtful point; but, in spite of one decision in the affirmative, the better construction of the statutes affecting this matter would appear to be, that a foreigner, owing allegiance in return for protection, would be within the scope of their provisions.(k)

All indictable offences committed within the Admiralty Jurisdiction, that is, on the high seas, are offences of the same nature, and liable to the same punishment, as if they had been committed on land (1) These

risés par la loi, pourra être poursuivi, jugé et puni en France, d'après les dispositions des lois Françaises" (I. 7. 24.).

"6. Cette disposition pourra être étandue aux étrangers qui, auteurs ou complices des mêmes crimes, seraient arrêtés en France, ou dont le gouvernement obtiendrait l'extradition" (I. 24.).

"7. Tout Français qui se sera rendu coupable, hors du territoire du royaume, d'un crime contre un Français, pourra, à son retour en France, y être poursuivi et jugé, s'il n'a pas été poursuivi et jugé en pays étranger, et si le Français offensé rend plainte contre lui" (I. 24.).

French Code, "Code d'Instruction Criminelle," p. 1.

(i) Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur."-Bartolus, ad & final. lex saccularii citat. ob. in l. I., cunctos populos; C. de summo trinit. in 1. questionem; and Henry on Foreign Law, p. 47. (k) Statutes relating to offences committed by British subjects in foreign states:33 Hen. VIII. c. 23., repealed by 9 Geo. IV. c. 31. ss. 7, 8; latter section applies to cases where the death, or the cause of the death only, happens in England. Cases under 33 Hen. VIII. c. 23:

Governor Wall's case, 28 State Trials, p. 51, A. D. 1802.

Rex v. Lepardo, 1 Taunton's Rep. 26; Russell and Ryan's Crown Cases Reserved, 134, A. D. 1807. Offender Lepardo discharged because he was a foreigner.

Rex v. Sawyer, Russell and R. 294, A. D. 1815.

Cases under 9 Geo. IV. c. 31:

Rex v. Helsham, 4 Carrington and Payne's Rep. 294.

Rex v. M. A. de Mattos, 7 Carrington and Payne, 458.

See remarks of Solicitor-General as to preceding case, and Justice Vaughan's

charge to the jury.

(1) Statutes relating to offences on the high seas, or in slavers, &c.:—

15 Rich II. c. 3.

28 Hen. VIII. c. 15. s. 1.

46 Geo. III. c. 54.

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Statutes were necessary *because, by the Common Law, the grand [*359] jury are sworn to inquire only for the body of the county, and cannot, without the help of an Act of Parliament, inquire of a fact done out of that county for which they are sworn.(m)

CCCXXXH. The exercise of Civil Jurisdiction over foreigners will be chiefly considered under the subsequent title of COMITY.

It will be sufficient to remark here that the Right of Jurisdiction and authority over a merely commorant foreigner, though he be subditus temporarius, does not extend to compelling him to render civil or military services; or to the power of trying or punishing a foreigner for an offence committed in a foreign land. This rule applies even where the offence has been against the State in which the foreign offender is now commorant; and much more forcibly against an extravagant pretension sometimes put forth, to the effect that the general powers of a State extend to punish all wrongdoers wheresoever the wrong may have been done.(n) So long as there are different States with different laws, no single State can have a right to punish, by its own laws, citizens of another State, for offences committed in places over which it has no jurisdiction; or to punish according to what it may conceive to be the law of the place where the offence was committed.

This assumed Jurisdiction is doubly reprehensible:-First, as being a usurpation of the Rights of another State; and *Secondly, as [*360] being a violation of what Heffters justly calls a ruling maxim (herschende Grundsatz) of all constitutional States,—that no man can be withdrawn from the tribunal to which he is naturally and legally subject, and compelled to plead before another.(o)

[*361]

*CHAPTER XIX.

392

EXCEPTIONS TO THE TERRITORIAL RIGHT OF JURISDICTION.

CCCXXXIV. We have now to consider certain exceptions to the sound and important rule laid down in the last chapter, which is built upon the maxim of the Roman Law, "extra territorium jus discenti impunè non paretur." (a)

9 Geo. IV. c. 31. s. 32.

4 & 5 W. IV. c. 36. s. 22.

Statutes relating to offences committed out of England, in particular places.10 & 11 W. III. c. 25.

59 Geo. III. c. 75.

(m) Stephen's Blackstone, vol. iv. p. 370. (Bk. vi. ch. 18.)

Russell on Crimes, ed. Greaves (1843), vol. i. p. 549. &c. (Bk. iii. ch. 1. s. 6.) (n) Lord Stowell, speaking of slavery, says that it has been suggested to the Court" that this trade, if not the crime of Piracy, is nevertheless crime, and that every nation, indeed every individual, has not only a right, but a duty, to prevent in every place the commission of crime. It is a sphere of duty (he adds) sufficiently large that is thus opened out to communities and their members."-"The Le Louis," 2 Dodson's Adm. Rep. p. 248.

(0) Heffters, s. 36. n. 4.

(a) Dig. ii. 1, 20.

The First class of exceptions to this rule is founded upon long usage
and the reason of the thing, and relates principally to the status of Chris-
tians in Infidel countries.

So early, indeed, as the sixth century, a derogation from the rule of
European International Law began to develope itself.

After the fall of the Eastern Empire, the Code of the Visigoths, not
the least remarkable monument of the Middle Ages, conceded to foreign
merchants the privilege of being tried by judges selected from among
their own countrymen.(6) But after the Ottoman power became esta-
blished in Europe, Christian nations trading with the territories subject
to that power, obtained from it, at different periods, a concession of ex-
clusive authority over their own subjects, nearly identical *with
that which the Christians jus commune(c) had conceded to foreign
ships of war in their ports.

[*362]

The vital and ineradicable differences (d) which must always separate the Christian from the Mahometan or Infidel, the immiscible character which their religion impresses upon their social habits, moral sentiments, and political institutions, necessitated a departure from the strict rule of Territorial Jurisdiction, in the case of Christians who founded commercial establishments in Ottoman or Infidel dominions.

France, as early as the beginning of the sixteenth century, stipulated that her subjects throughout those districts, generally known as the Echelles du Levant, should be exclusively justiciable in criminal and civil matters before their own tribunals, and according to their own laws; (e) and this privilege has been continued by a series of subsequent capitulations or diplomas of concession.

CCCXXXV. The concessions by the Porte to the British Crown(ƒ) began in the reign of Queen Elizabeth. A Treaty in 1675, (art. 18,) recited that British enjoyed the same privilege as French, Venetian, and other subjects. Orders of council(y) and Acts of Parliament (h) have, at different times, prescribed the manner in which the Crown shall exercise this jurisdiction. The latest and most important statute, which being one passed in the sixth and seventh years of the present Queen, enables her to exercise any power or jurisdiction which she now has, or

(b) Miltitz, Manuel des Consuls, 1. 1. i. ch. iv. s. 2. p. 161., 1. ii. ch. i. s. 1. p. 4. n. 2. "Dum transmarini negotiatores inter se causam haberent nullus de sedibus nostris eos audire præsumat, nisi tantummodo suis legibus audiantur apud telonarios suos." These Telonarii were in fact Prætores Peregrini.

Montesquieu, Esp. des Lois, 1. xxi. ch. 19.

Amasis (579 A. J. c.) is said to have permitted the Greeks established at Naucratis in Egypt to choose magistrates from their own nation for the decision of disputes among themselves (Herod. ii. 179).

(c) See this phrase frequently in the letters of Sir L. Jenkins which contain responsa upon questions of Public and International Law.-Life, vol. ii. pp. 719-20. (d) Vide antè, p. 82.

Vide post, CoNSULS.

(e) Ortolan, Dipl. de la Mer, t. i. pp. 311-14.

(f) Miltitz, t. ii. 779. &c. (l. iii. c. 1. s. v. par. 29.)

(g) Hertslet's Treaties, vol. vi. Orders in 1830, 1839, 1843.

(h) 6 & 7 W. IV.

6 & 7 Vict. c. 94.

1

S.vi. Legs. 81, 82. S.x. legs. 98, 99. S. xii. ig. 101

272

PHILLIMORE ON

INTERNATIONAL LAW.

hereafter may have, within any country out of her dominions,

[*363] in the same manner as if her Majesty had acquired such power
and jurisdiction by the cession or conquest of territory.

men.

Generally, (i) it may be said that the Consuls of Christian Powers
residing in Turkey, and the Mahometan countries of the Levant, exercise
an exclusive Criminal and Civil Jurisdiction over their fellow-country-
The Criminal Jurisdiction is usually limited to the infliction of a
pecuniary fine; in graver cases, the Consul exercises the functions of a
juge d'instruction, collecting evidences of the crimes, and transmitting
them to the tribunals of their own country.(k)

CCCXXXVI. With respect to British subjects in China,(7) an Order
in Council issued on the 13th of June, 1853, which recited "that by
treaty, grant, sufferance, or other lawful means Her Majesty hath power
and jurisdiction over British subjects within the dominions of the Empe-
ror of China, and the same or certain parts thereof have heretofore been
exercised, on behalf of Her Majesty, by Her Majesty's Consular officers,
resident within the said dominions," (m) and proceeded to make regula-
tions for the administration of civil and criminal justice over all subjects
"being within the dominions of the Emperor of China, or being within
any ship or vessel at a distance of not more than one hundred miles
from the coast of China."(n) By one of the regulations(o) of this Order
it is provided that the Supreme Court of Hong Kong may take cogni-
zance of offences committed by *British subjects within the pen-
[*364]
insula of Macao, but may not issue any writ or warrant to be
served therein.(p)

CCCXXXVII The whole question of the Consular Jurisdiction will be discussed in a later part of this Work, under the title CONSULS. XLT, CCCXXXVIII. The Second class of recognized exceptions, which entitle foreigners who are the subjects of them to be considered as morally without, though physically within, the territorial limits, relate to Foreign Sovereigns passing through, or temporarily residing in the territory of another state; they are held not to be amenable to the jurisdiction, civil or criminal, of its tribunals. They represent the nation of which they are sovereigns, and being permitted to enter a foreign State are entitled, by International Law, to be considered, both as to their own person and effects, and as to those of their attendants, as being still within their own dominions.(9)

(i) Wheaton's Elém. 1. 136.

(k) The labourious and valuable work of Miltitz, cited above, contains a mine of historical information upon this subject.

(1) See 3 & 4 W. IV. c. 93.

6 & 7 Vict. c. 80.

(m) See papers laid before Parliament, 1853.

(n) Regulations X. XI. XII. provide for the administration of civil justice in
cases where both parties to the suit are British subjects, or where one is a British
and one a Chinese subject.

(0) XLV. (p) As to Persia, see Miltitz, i. 777, &c. (1. iii. c. 1, s. v. par. 29.)
Hertslet's Treaties, i. 408.

De M. et De C. v. 153. Traité entre Gr. Bretagne et Perse, Téhéran, 28 Oct.

1841.

(q) Vide post, Chapters on the subject of SOVEREIGNS and AMBASSADORS.

Thirdly. The same immunity is applicable to the Ambassador or duly accredited Public Minister of a foreign State, as will be considered more at length in a later part of this Work.

Fourthly. If a foreign army be permitted to pass through, or be stationed in, the territories of another State, the persons composing that army, or being within its lines, are entitled to exterritorial privileges.

Fifthly. All ships, public or private, upon the high seas, are subject only to the jurisdiction of the country to which they belong.(r) This last subject requires a fuller discussion.

XLII *CCCXXXIX. The nature and extent of these exterritorial

[*365] privileges will be discussed at length hereafter; it is enough, therefore, to have given a brief summary of them in this place. Those entitled to such privileges retain the domicil of their own country, with all the incidental rights affecting their persons or property. (s) This rule may not in every conceivable case exclude the possibility of a domicil in the country where the privileged person is residing-a domicil for certain purposes, at least. For instance, it is possible that an ambassador may be sent to the place of his native, or of a subsequently acquired(t) domicil; but the general rule is as has been stated. (u)

When a person is admitted to exterritorial privileges, the things that
belong to him, and the persons that form part of his household or suite,
are, generally speaking, sheltered under the same immunities. These pri-
vileges exempt them from liability to the civil or criminal tribunals. It
is however possible, that even privileged persons, by mixing themselves
up with the trade or commerce of the country, or by becoming owners
of immovable property therein, might of necessity be in some measure
amenable to the civil tribunals.

The privilege does not extend to real or immovable property. This,
like the property of a native, is subject to the municipal law of the
land.(v) The privileged person is free from the payment of
[*366]
taxes or duties of any kind; but not from paying the tolls upon
the public ways over which he travels, or any public impost attached to
the use of a public institution or thing.

CCCXL The important exception(x) to the rule of International Law

(r) Wheaton, Elém. i. 119, citing Casaregis Discurs. pp. 136-174: "Exceptis tamen ducibus et generalibus alicujus exercitûs, vel classis maritimi, vel ductoribus alicujus navis militaris nam isti in suos milites, gentem et naves, liberè jurisdictionem sive voluntariam, sive contentiosam, sive civilem, sive criminalem, quod occupant tanquam in suo proprio exercere possunt."

(s) Heffters, s. 42.

Vide post, Chapters on SOVEREIGNS and AMBASSADORS.

(t) Heffters, s. 42, i. n. 3, citing Treaty of Westphalia, v. 28: "Nisi forte in qui-
busdam locis ratione bonorum et respectu territorii vel domicilii aliis statibus
reperiantur subjecti."

(u) Bynkershoek, De Foro Leg. c. xi. 5, c. xviii. 6.
Wiquefort, L'Ambassadeur, i. 28. p. 422.
Bynkershoek, de Foro Leg. c. xv. 6., c. xvi.
Merlin, Rep. Ministre Public, s. 4, 5. Art. 6, 8.

(v) Heffters, s. 42, vi.

It has been recently decided, that personal property situated in Great Britain, of a person dying domiciled abroad, does not pay the usual duties to the crown.— Vide post, DOMICIL.

(x) Grotius.

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