had acquired that jurisdiction by the cession or conquest of territory(c).

The authority of the Consular Courts of the United States is derived from Acts of Congress passed in 1848, 1860 and 1870. But in every case the power to pass such legislative measures, whether British, American, French, or those of any other country, depends on treaties entered into and customs acquiesced in by the local sovereigns. This system of consular jurisdiction (d) originating in Turkey (including her former vassal State, Egypt) came to be extended in the same manner to other non-Christian countries, such as China, Japan, Korea, Persia, Siam, Morocco, Muscat.

In Egypt the consular system was replaced in 1876 by a system of mixed tribunals, usually described as international courts, whose judges are in part natives and in part foreigners. The foreign members of the courts are appointed by the Egyptian administration, on the recommendation of their respective Governments. These international tribunals included three courts of first instance, sitting at Alexandria, Cairo and Zagazig, and a Court of Appeal at Alexandria. In December, 1914-owing to the fact that the Sultan of Turkey and the Khedive of Egypt joined the enemies of the Allies in the Great War-Turkish suzerainty over Egypt was abolished, and the country was formally declared a British protectorate. After making the necessary adjustments which this change involved, the British Government informed the newly-appointed Sultan of Egypt that with regard to the judicial administration of the country they had for some time been of the opinion that the system of capitulations no longer harmonized with the development of Egypt and that a revision would be effected at the close of the war.

It is to be noted that before Turkey openly became a belligerent, the Sublime Porte denounced the capitulations. No doubt difficulties, anomalies, and abuses were incidental to the system of consular jurisdiction. But this unilateral repudiation of conventional and customary obligations on the part of the Ottoman Government. was undoubtedly an illegitimate proceeding. In view of established arrangements, such change ought to have been made after negotiation with and with the consent of the other Powers concerned.

(c) 53 & 54 Vict. c. 37, s. 1.
(d) As to the origin of the system,

see Sir H. Jenkyns, British Rule and Jurisdiction beyond the Seas (1902).

Independence

of the State as

In the case of Japan (e), whose civilization and progress inspired the Christian States with confidence, the extra-territorial privileges and immunities of consuls were abolished in 1899 by means of treaties. In other countries the system of consular jurisdiction is more or less being relaxed in favour of the local government.

Every sovereign State is independent of every other in the to its judicial exercise of its judicial power.

power.

Exceptions.

Extent of the

This general position must, of course, be qualified by the exceptions to its application arising out of express compact, such as conventions with foreign States, and acts of confederation, by which the State may be united in a league with other States for some common purpose. By the stipulations of these compacts it may part with certain portions of its judicial power, or may modify its exercise with a view to the attainment of the object of the treaty or act of union.

Subject to these exceptions, the judicial power of every State is co-extensive with its legislative power. At the same time it does not embrace those cases in which the municipal institutions of another nation operate within the territory. Such are the cases of a foreign sovereign, or his public minister, fleet or army, coming within the territorial limits of another State, which, as already observed, are, in general, exempt from the operation of the local laws.

I. The judicial power of every independent State, then, extends, over criminal with the qualifications mentioned,--

judicial power

offences.

1. To the punishment of all offences against the municipal laws of the State, by whomsoever committed, within the territory.

2. To the punishment of all such offences, by whomsoever committed, on board its public and private vessels on the high seas, and on board its public vessels in foreign ports.

3. To the punishment of all such offences by its subjects, wheresoever committed.

4. To the punishment of piracy and other offences against the law of nations, by whomsoever and wheresoever committed.

It is evident that a State cannot punish an offence against its municipal laws committed within the territory of another State, unless by its own citizens; nor can it arrest the persons or property of the supposed offender within that territory: but it may

(e) Cf. Imperial Japanese Government v. The P. & O. Co., (1895) A. C. 644.

arrest its own citizens in a place which is not within the jurisdiction of any other nation, as the high seas, and punish them for offences committed within such a place, or within the territory of a foreign State.

By the Common Law of England, which has been adopted, in this respect, in the United States, criminal offences are considered as altogether local, and are justiciable only by the courts of that country where the offence is committed (f). But this principle is peculiar to the jurisprudence of Great Britain and the United States; and even in these two countries it has been frequently disregarded by the positive legislation of each, in the enactment of statutes, under which offences committed by a subject or citizen, within the territorial limits of a foreign State, have been made punishable in the courts of that country to which the party owes allegiance, and whose laws he is bound to obey. There is some contrariety in the opinions of different public jurists on this question; but the preponderance of their authority is greatly in favour of the jurisdiction of the courts of the offender's country, in such a case, wherever such jurisdiction is expressly conferred upon those courts, by the local laws of that country. This doctrine is also fully confirmed by the international usage and constant legislation of the different States of the European continent, by which crimes in general, or certain specified offences against the municipal code, committed by a citizen or subject in a foreign country, are made punishable in the courts of his own (g).

of British

committed

The cases in which English Courts have jurisdiction to try Jurisdiction offences committed abroad (h), are exceptions to the general rule Courts over that crimes are local in their character, that is, they are offences crimes against the law of the State in which they are committed; but they abroad. may also be and frequently are offences against the law of the State to which the offender owes allegiance (i). The following are the principal exceptions to the general rule: Political offences, such as treason (k); administering unlawful oaths, and forging government documents (). As these acts must necessarily be intended to take effect in the country against which they are

(f) Cf. Macleod v. Attorney-General for New South Wales, (1891) App. C. 455.

(g) Felix, Droit International Privé, $$ 510-532. See American Jurist, vol. xxii. pp. 381-386.

(h) Cf. Foote, Priv. Int. Jurisp. (1914), pp. 470 seq.; Cobbett, Cases, vol. i. pp. 225 seq.

(i) Macleod v. Att.-Gen. for New South Wales (1891), 60 L. J. P. C.

55.

(k) 35 Henry VIII. c. 2. As to what is treason, see Sir James Stephen, Digest of Criminal Law, ch. vi.; and R. v. Lynch, (1903) 1 K. B. 444 (where a British subject was tried here for treason committed in South Africa).

(2) 52 Geo. III. c. 104, s. 7. Wharton, Conflict of Laws, § 916.

Varying practices

in different States.

devised, they may perhaps not be looked upon as a real exception. But homicide and bigamy (m) abroad are undoubted exceptions, and also certain statutory offences under the Foreign Enlistment Act, the Commissioners for Oaths Act, 1889, and the Explosive Substances Act, 1883 (n). A British subject who commits murder or manslaughter abroad on land, whether within the King's dominions or without, and whether he kills a British subject or not, can be tried in England or Ireland wherever he may be apprehended. This is not to prevent his being tried elsewhere (o). Offences against property or person committed at any place, ashore or afloat, out of His Majesty's dominions, by any master, scaman or apprentice, who, at the time when the offence is committed, or within three months previously, has been employed in any British ship, may be tried in England (p).

With regard to criminal jurisdiction, the States of the world have by no means adopted the same practice. Some countries, like Great Britain and the United States, recognise the territorial principle, subject to such modifications and extensions as may be made by legislative enactments. Other countries, e.g., Russia, Italy, Norway, Austria, some of the German States and some of the Swiss cantons, claim a general criminal jurisdiction over their subjects, irrespectively of their place of residence and no matter against whom the offence was committed. Others, again, claim a greater or lesser jurisdiction over offences committed even by foreigners on foreign territory; of these, one group of States (e.g., France, Germany, Austria, Italy) limit the claim to serious crimes against the State; another group (e.g., Russia, Greece, Mexico) extend it to serious offences against their respective subjects. And so on with the different claims of other States (q). Such offenders could not, of course, be tried and punished, unless they came within the territory of the aggrieved State. Moreover, the claims of each State are not necessarily recognised by the others.

An interesting case illustrating the claim to exercise jurisdiction over an extra-territorial offence committed by a foreigner is Cutting's Case (1886) (r). In 1886, Mr. Cutting, an American, who had before resided intermittently in Mexico, published in a

(m) 24 & 25 Vict. c. 100, s. 57.

(n) 17 & 18 Vict. c. 104, s. 267 (the Merchant Shipping Act, extended by 53 & 54 Vict. c. 37, Foreign Jurisdiction Act); and see 33 & 34 Vict. c. 90, s. 4 (Foreign Enlistment Act), 46 Vict. c. 3 (The Explosive Substances Act), and 52 Viet. c. 10 (The Commissioners for Oaths Act).

(0) 24 & 25 Vict. c. 100, s. 9.

(p) 17 & 18 Vict. c. 104, s. 267.. (4) Cf. the Report of the American Department of State on Extra-territorial Crime and the Cutting Case, pp. 38-53.

(r) Wharton, Digest, vol. i. pp. 48, 49; vol. ii. pp. 439 442; Moore, Digest, vol. ii. §§ 200-202.

newspaper circulating in Texas a libel on a Mexican citizen. Criminal proceedings were instituted in the Mexican Courts; and later Mr. Cutting having been found in Mexican territory was arrested and imprisoned. This action purported to be in accordance with the Mexican Penal Code, which empowered the local courts to try offences against Mexican citizens, even when committed abroad. The United States Government, however, demanded the release of their citizen. The Secretary of State pointed out that the newspaper had not been published in Mexico, and that Mexico could not assume jurisdiction over the author of the libel published in the United States. The Federal and State Governments would themselves mete out justice for wrongs done within their jurisdiction, and they would not allow their prerogative to be usurped by Mexico, or allow a citizen of the United States to be tried elsewhere for acts done in the United States. Further, by the law of nations no punishment could be inflicted on a foreigner save conformably to the sanctions of justice held by all civilized nations, e.g., the right to have the accusation examined by an impartial court, an explanation of the alleged facts to the accused, the opportunity of having counsel and preparing the defence, permission to go at large on bail where the alleged offence is not of a very grave character, the production on oath of evidence supporting the charge with the right to cross-examine and bring evidence in reply; and in the present case all these sanctions were disregarded. To the American demand the Mexican Government replied that the offence was punishable under the local law, and that the national Government could not interfere with the ordinary course of law. Eventually, however, the Mexican Government induced the prosecutor to withdraw from the case, and so Mr. Cutting was released.

Laws of trade and navigation cannot affect foreigners, beyond the territorial limits of the State, but they are binding upon its citizens, wherever they may be. Thus, offences against the laws of a State, prohibiting or regulating any particular traffic, may be punished by its tribunals, when committed by its citizens, in whatever place; but if committed by foreigners, such offences can only be thus punished when committed within the territory of the State, or on board of its vessels, in some place not within the jurisdiction of any other State.

Laws of trade and naviga

tion.

OF CRIMINALS.

The public jurists are divided upon the question, how far a EXTRADITION sovereign State is obliged to deliver up persons, whether its own subjects or foreigners, charged with or convicted of crimes com