CHAP. 2. PART II. constitute a serious derogation from the sovereignty of the foreign state. Great Britain, however, makes no such pretension. She fully admits the supremacy of the territorial law, not merely on land, but in the ports and harbours. She recognizes that every country has the right of enforcing its own criminal laws and police regulations, and that if any offence is committed against such laws or regulations on board a British merchant ship in territorial waters, or outside the ship by a person belonging to it, the offender is liable to be locally dealt with. In such cases Great Britain confines the duty of her consuls to seeing that the person accused is fairly tried, and that justice is properly administered, reserving to herself the protective rights which have been already mentioned. Usual practice in civil and criminal matters. But while the supremacy of the territorial law is admitted, subject to the qualifications introduced by custom and treaties, Great Britain has the right to demand not merely that the narrowest international custom shall be observed, but that a foreign state shall act upon the doctrine held by it, and usually applied, as to the due range within which it may assert its authority. Probably no state would be anxious to mix itself up with questions of breach of contract or other civil disputes 1. Were it even disposed to do so, occasions for the exercise of its jurisdiction would be few. Apart from miscellaneous disputes originating within its territory, questions arising out of contracts concluded there, and of contracts to which subjects of its own were parties, would alone be open to it. It is the usual course for the local authorities to permit the consul to settle these matters, and not to interfere without reference to him and reason for belief that he is unable to make a satisfactory arrangement. In matters falling under the head of criminal jurisdiction 1 Occasionally the consular officer finds it worth while to have matters of this sort adjudicated upon by the local courts by consent. most states allow consuls to have exclusive charge of the PART II. purely internal order of the merchant vessels of their nation, CHAP. 2. and the local authorities intervene only when either the peace or public order of a port or its neighbourhood is disturbed, or when persons other than the officers and crew of a ship are mixed up in the breach of order which is committed. The usage is sufficiently established in its broad lines to render it a fair subject for international complaint if local authorities interfere in questions of discipline which involve offences criminal by British law; and generally abstention from interference goes considerably further. On one important point custom is decisively settled. If a person on board a British ship commits a crime on the high seas and is brought in custody into a foreign port, the territorial authorities will not interfere with his being kept in custody on board, nor with his being transferred to another vessel for conveyance to England. But if a crime is committed in a port, the 1 For example, in 1849 a murder took place on board an American vessel lying in the port of Havre, which excited so much feeling among the crews of other American vessels in the port that there was some talk of lynching the murderer. The local authorities stepped in, arrested, and tried the criminal. On the other hand, in 1889 a murder took place on board a British steamer at San Ramon Manzanillo in Cuba. No external disturbance seems to have taken place, and the Spanish authorities refused to take cognizance of the case, holding it to be one for the exercise of British jurisdiction. Ortolan, Diplomatie de la Mer, vol. i, Annexe J.; Rev. de Droit Int. Privé, xvii. 96. 2 Of course the local authorities have no jurisdiction enabling them to try the offender, even if he be landed, unless he is a subject of their state. In the latter case, however, it is the view of Great Britain that concurrent jurisdiction on their part is permissible. Under a misapprehension of the law, the High Court at Calcutta tried an English sailor, who had stabbed the mate of an American vessel, and who had been brought into the port and handed to the local authorities for safe custody. The American minister in London complained of the exercise of jurisdiction by the High Court, alleging that as regards common crimes committed on board merchant vessels on the high seas the competent tribunals of the vessel's nation have exclusive jurisdiction. While surrendering the man on the ground that he had been tried under an erroneous view of the G PART II. authorities of different countries would no doubt take CHAP. 2. different views as to what amount or kind of disturbance to the peace or order of the port should attract their notice; their right to determine for themselves in what circumstances their jurisdiction should be exercised cannot be gainsaid. Cases in which a consul in the aid of the local au There are occasions on which it may become the duty, or be at least advisable, for a British consular officer to has to call invoke the action of the local authorities. If an offence has been committed which is punishable both by British and thorities. by local law, and the territorial authorities are willing to take cognizance of the matter, reasons of convenience to the ship and the witnesses, or considerations based on promptness or certainty of justice being done, may prompt him to send a case before the courts of the country, if their practice can be trusted, and their modes of punishment are in harmony with English ideas. It is a matter for his discretion whether this course be adopted or not 1. Since a British agent has no power of acting on the soil of a foreign state he must apply to the local authorities for the apprehension and surrender of an escaped criminal, or of a deserter, if they are willing to lend assistance, or if municipal law, the British government recorded its dissent from the There are a certain number of consular functions in connexion with wrecks, salvage, &c., upon which it is unnecessary to touch, the jurisdictional elements in them being very slight. There are others connected with the engagement of seamen, &c., which are distinctly jurisdictional, but which do not call for any remarks. CHAP. 2. a treaty or convention exists under which they are bound PART II. to do so. Agreements, in various forms, have been entered into between Great Britain and most foreign countries for the mutual surrender of seamen, other than slaves or subjects of the local territorial power, who desert from merchant ships of one of the contracting parties at ports belonging to the other1. tion by consular given by § 41. It is scarcely necessary to point out that as British Limitaconsuls have no extra-territorial jurisdiction within states territorial of purely European type, they cannot do any jurisdictional law of act in a foreign country of that type which is inconsistent powers with the local laws; so that if any act permitted or enjoined British by the British government were found to be locally forbidden, it would be the duty of the consul to refrain from performing it until an arrangement had been come to between the two states. With regard to ministerial acts the case would seem at first sight to be different, The duties of a consul in the more important particulars, such as the celebration of marriage and the performance of notarial functions, are prescribed by statutes which confer benefits upon the subject. It is not for the official, as between himself and a British subject, to accord or withhold these benefits at his discretion or caprice. The subject has a right to demand that they shall be given. But the official and the subject do not stand alone, face to face. Territorial sovereignty has a higher right than the foreign law; and if the municipal law of the country forbids the act which the foreign law appears to prescribe, it must be supposed that the latter has been enacted in ignorance of the former, 1 Agreements of the above kind have been entered into with Austria, Belgium, Chile, Colombia, Denmark, Ecuador, France, Germany, Greece, Italy, Madagascar, Morocco, Netherlands, Nicaragua, Paraguay, Peru, Portugal, Russia, Salvador, Sandwich Islands, Siam, Spain, Sweden and Norway, Tunis, Turkey, and Uruguay. law. CHAP. 2. PART II. and that it does not intentionally clash with it. In other words, it is contrary to the comity of nations to allow a consul to do anything inconsistent with the law of the country in which he resides; there is consequently an absolute presumption that legislation enjoining acts, which are there unlawful, is invalid and nugatory to the extent of the unlawful acts. To take an example; the celebration of a marriage or the administration of an oath within the German Empire by any one who is not a duly qualified official of the German state, is punishable by fine and imprisonment. Before these territorial prohibitions the positive injunctions of British enactments become valueless, and the right of the British subject to demand the performance of acts for his benefit disappears. The right, therefore, of a British subject to require that any ministerial act shall be done for him by a British consul must always be tested and limited by reference to the municipal law of the territorial state1. 1 Though the precise point has never been decided in an English court, there can be no question what, if it were to present itself, the decision would be. 'If the meaning of an Act is doubtful,' said Mr. Justice Maule, in Leroux v. Brown, it is a reason for not putting a particular interpretation upon it, that that interpretation would violate the comity of nations' (xxii Law Journal, C. P., 3); and in Atkinson v. the Newcastle Waterworks Lord Cairns expressed the opinion that it must depend on the purview of the legislature in the particular statute, and the language which they have there employed,' whether, 'wherever a statutory duty is created, any person who can show that he has sustained injuries from the nonperformance of that duty, can bring an action for damages against the person on whom the duty is imposed' ii. Ex. D. 448. |