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Ex parte Lloyd
at p. 250.
Carr v. Fracis,
81 L.T. 51.
82 L.T. 613.
85 L.T. 144.
cf. p. 8.
R. v. Keyn,
2 Ex. D. 63.
interpreters of the law, and Courts of Justice are not bound by a mistake of the Legislature as to what the existing law is" (ex parte Lloyd). What the existing law is on any point is to be found in the unreversed decisions of the Courts: and the principle has been more than once enunciated, that Parliament cannot reverse a decision of the Courts, though it can relieve from its consequences, and alter the law for the future. *
The question which now concerns us is the exercise of the King's foreign jurisdiction in the territorial waters of the State in which that jurisdiction has been acquired: and this raises the prior question, What are the territorial waters of such a State?
Throughout the judgments in all the Courts in this case there is an assumption that the 3-mile limit applies to Muscat. In the Queen's Bench, Grantham J. said: "I have no doubt that the 3-mile limit applies to the waters of Muscat, and that within that limit those waters must be considered as under the territorial
power and authority of the Sultan." In the Court of Appeal, Williams, L. J. said: “There seems no doubt but that the goods were seized within the 3-mile limit. We assume that a ship within the 3-mile limit bound for Muscat is within the territorial waters of Muscat, and as such within the jurisdiction of the Sultan and his Courts executing his delegated authority, although, if this case depended upon the truth of that assumption, it might be necessary to consider further whether by international law such a vessel must be considered within the jurisdiction of the Sultan for the purpose of legal proceedings." And in the House of Lords, Lord Macnaghten said: The act "was committed within the territorial waters of Muscat, which are, in my opinion, for this purpose as much part of the Sultan's dominions as the land over which he exercises absolute and unquestioned sway.'
I have already indicated the difficulty in fully appreciating this decision owing to the fact that there was no reference, from the beginning to the end of the case, to the existence of foreign jurisdiction in Muscat. But putting this on one side, and, if I may say so with great respect, putting also on one side these dicta, the decision falls well within the principles enunciated by Cockburn C. J. in the Franconia case. There was a claim to exercise jurisdiction by the Sultan over waters adjoining his dominions, within a limit which comes within the accepted limits of territorial waters: and the claim, being for a definite and
* See also on this point, Lord Justice Mellish's remark during 4.-G. for Hong Kong v. Kwok-athe argument in A.-G. for Hong Kong v. Kwok-a-Sing:-"There Sing, L.R. 2 P.C. is no case that I know of-and it appears to me to involve an at p. 190. important principle-where, even if a declaratory statute is passed after a formal decision of a Court, it has altered that decision. The Court of Appeal has to decide whether the Judge did right at the time he decided the case. The new Ordinance no doubt applies to litigation which is going on at the time: but the question is, does it apply so as to make erroneous a judgment which has been already given?"
well-recognized object, was one which other States would recognize, and therefore the seizure was lawful.
decision in Carr v. Fracis, Times
The difficulty in accepting, without further information as Examination of to the law of Muscat, the 3-mile limit as the extent of the territorial waters of Muscat, arises from the fact that this limit & Co. is known only to English law. The Courts assumed that the English limit was the Muscat limit. But so also might the French Courts assume that the limit was that known to French law: German Courts might assume it to be the German limit, Italian Courts the Italian limit, and so on. The result would be that the territorial waters of this State would be an uncertain and varying quantity, according to the nationality of the Court before which the question arose which is impossible on the face of it. Treating Muscat, as it was in fact treated throughout the case, as an independent State, it is submitted that the only way of determining what its territorial waters are is that which would be adopted in the case of any other independent State, by enquiring what claim to such waters had been made by its laws.
Reverting to the question specially in hand, there can be no doubt that the same principle must apply to all oriental States where foreign jurisdiction is exercised. But when this has been done, then it follows incontrovertibly, I venture to think, from the fundamental principles of the subject, that the King's foreign jurisdiction can be exercised in those waters to the same extent and for the same purposes as the jurisdiction of the foreign Sovereign is exercised or claimed, but no further.
There is a further curious difficulty in the case: the Muscat Order in Council of 1867, does not include the territorial waters within the limits of the Order: and so far as consular jurisdiction is concerned, the suit was between British subjects, and therefore within that jurisdiction as defined in the Order. As to this another interpretation of the decision may be given, following on the lines already suggested: As the King's jurisdiction is not claimed in the territorial waters of Muscat, the, Sultan has reserved the right of legislating for them, and to this extent may of. p. 8 be regarded as an independent Sovereign.
Delegated exercise of Foreign Furisdiction in other
THERE ARE three statutes creating a limited jurisdiction over
have merged into
These statutes are
24 & 25 Vict. c. 31-the Sierra Leone Offences Act, 1861-in respect of te itories adjacent to Sierra Leone.
26 & 27 Vict. c. 35—the South Africa Offences Act, 1863-in respect of the territories in South Africa south of the 25th degre of south latitude, not being within the jurisdiction of any civilised Government.
34 & 35 Vict. c. 8-the West Africa Offences Act, 1871-in respect of territories adjacent to Sierra Leone, Gambia, Gold Coast, and Lagos, and the adjacent Protectorates, not being within the jurisdiction of any civilised Government.
These enactments are still on the statute-book, though it is the new Orders in very doubtful, in view of the Orders in Council which have been since passed, whether they are still operative, the territories having been absorbed either into Colonies or Protectorates. two are included in the 2nd schedule of the Foreign Jurisdiction Act, 1890, and may, by s. 17, be revoked or varied by Order in Council. The Orders above referred to, however, do not expressly repeal, or even refer to them.
The territories in West Africa are now absorbed in the following-Sierra Leone Protectorate (1), Lagos Protectorate (2), Gold