ante, p. 41.

a statute laid a duty on a person abroad who was not a recognised official, and suppose this duty were contrary to the law of the country where he had been requested to perform it; suppose further that the person on whom the duty lay refused on the ground that it was' contrary to the lex loci, that this refusal entailed damage to the requesting party, and that, both parties being subsequently in England, an action was brought for breach of the duty. Would not the Courts hold that the lex loci was stronger than this extra-territorial Act of the British Parliament? An affirmative answer seems inevitable.

Or, to revert to the case already put of the Monegascan policeman ; if I should afterwards find him in England and should bring an action for assault, would he be entitled to urge the English statute in his defence? Or how would the Courts apply the accepted rule as to actions for torts committed in a foreign country, that the act must be wrongful both by the law of the place where it was committed, and by the law of England?

Whatever may be the true view as to the effect of extra-territorial legislation when it imposes negative duties, I am inclined to think that there is little doubt that when it imposes positive duties, which either the law of the foreign country prohibits expressly or does not warrant, it is beyond the power of Parliament.

Criticisms have, too, very recently been passed on the extra-territorial legislation of the Colonies; the case in point being indeed but a reproduction of an English statute.

In Macleod v. The Attorney General for New South Wales (Law Reports, [1891,] Appeal Cases, 455), the question arose on the construction of sec. 54 of the New South Wales Criminal Law Amendment Act, 1883. The section provides that "whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years." The construction of the statute as it stands, and upon the bare words, involves that "any person, married to any other person, who marries a second time anywhere in the habitable globe, is amenable to the criminal jurisdiction of New South Wales, if he can be caught in that Colony." Lord Halsbury, C., continued: "The Colony can have no such jurisdiction, and their Lordships do not desire to attribute to the Colonial Legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a Colony, and, indeed, inconsistent with the most familiar principles of international law."

The judgment may therefore be divided into two parts. First, the jurisdiction of the Colonial Legislature being confined to the territory of the Colony in which it is established, it has no power to pass any extraterritorial laws at all, whether the duty imposed be positive or negative, even if they be limited to British subjects. A construction of this section which did not infringe this principle was possible, and it was therefore adopted; but if it had not been possible, the enactment would have been held to have been ultra vires.

Secondly, the familiar principles of international law were applied. Apart from any question of the powers committed to a Colony, the jurisdiction would, on general principles, be confined within its own

territories, and the maxim extra territorium jus dicenti impune non paretur would be applicable. "All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed, and except over her own subjects, Her Majesty and the Imperial Legislature have no power* whatever." Lord Wensleydale, when Baron Parke, *[power, il. advising the House of Lords in Jefferys v. Boosey (4 House of Lords right of Reports, at p. 926), expresses the same proposition: "The Legislature legislation]. has no power over any persons except its own subjects—that is, persons natural-born subjects, or resident, or whilst they are within the limits of the kingdom. The Legislature can impose no duties except on them; and when legislating for the benefit of persons, must, primâ facie, be considered to mean the benefit of those who owe obedience to our laws, and whose interests the Legislature is under a correlative obligation to protect."

The rule of construction does then afford some relief from the difficulties of the subject. We have already seen an example of this in Russell v. Cambefort. And generally with regard to negative duties they ante, p. 40. will be presumed to apply only to those people over whom the legislating body has authority: and thus the same words in an English cf. 24 & 25 statute may have a wider application than when they occur in a Colonial Vict. c. 100, statute. s. 57: bigamy.

But the dicta go far beyond the rule of construction: they point indeed to the limits of Parliamentary power. Lord Wensleydale's language is not very clear: it may probably be paraphrased thus"subjects, that is, persons who are natural-born subjects, or resident, or within the limits of the kingdom." Lord Halsbury's is clear and well-defined: "Except over her own subjects, Her Majesty and the Imperial Legislature have no power whatever." But this is a very different proposition from that laid down by Sir FitzJames Stephen, ante, p. 45quoted at the beginning of this note.

Extra-territorial legislation has these definite limits: it is at least confined to the subjects of the legislative body who may be abroad; and I think, for the reasons already given, that it is also strictly limited to the imposition of negative duties. If there is a power of imposing positive duties, they must at least be not inconsistent with the law of the country where they are to be performed.

With regard to the granting of rights to persons out of the country, which was the question chiefly in issue in Jefferys v. Boosey, if the rule of construction does not settle the matter, as it did in that case, the rules governing the incidence of the correlative duties would probably determine the question.

But unconstitutional Acts of Parliament are one thing, the redress of such Acts by the Courts is another. The word "unconstitutional" in the mouth of a Law Officer advising the Government on the question whether such and such a Bill should be brought forward or not, may have a definite meaning*: in the mouth of a Judge it may have no

* It may be noticed that Sir Erskine May himself has sanctioned the use of the term. In his chapter on the Power and Jurisdiction of Parliament (Parliamentary Practice, chapter ii.) the following note is given :-" Parliamentary legislation, on any subject of exclusively internal concern to any British Colony, possessing a representative Assembly, is, as a general rule,

E

diction.

meaning whatever. The position advanced in the text, that it has a definite meaning in the Courts, is not taken up without some diffidence. Its important bearing on the question of exterritoriality will be seen in the following concluding paragraphs of this section.

Bearing of The subject has an important bearing on Consular jurisdicpreceding discussion on tion; it assumes a practical shape, because, assuming direct Consular juris- legislation in the matter, there is an Executive in the country by means of which extra-territorial Acts of Parliament might be carried out; and though the legislation were repugnant to the Treaty, the result of the proposition, that Parliament has the power to legislate extra-territorially for British subjects, would be that the Treaty would drop out of consideration altogether. Because, if extra-territorial legislation is sound per se, Parliament is within its powers in legislating for British subjects abroad, and a duty is imposed on them of obedience; and, moreover, the British Executive and the Judiciary who happen to be established in the country may also be directed by extra-territorial legislation to compel obedience or enforce the sanctions.

So long as it is only a question of execution, or perhaps criticism, of extra-territorial legislation by the home tribunals, the practical importance of this question is perhaps small; but directly we find the means of carrying this extra-territorial legislation into force ready to hand in the foreign country, the question assumes somewhat alarming proportions. If this legislation is not inherently defective, it belongs inherently to the strength of Parliament, and the mere fact that the Sovereign has entered into a Treaty would be material only as supplying the means of carrying this legislation into effect.

If it be said that this applies to all forms of legislation, whether it imposes positive or negative duties, the answer is, No; because, to enforce extra-territorial negative duties exterritorially, a statute imposing positive duties on the exterritorial Executive would be required.

The conclusion seems irresistible that, all questions of its being

unconstitutional. It is a right of which the exercise is reserved for extreme cases, in which necessity at once creates and justifies the exception.”—Lord Glenelg (Parl. Papers, 1839 (118), p. 7).

has no power

the Sovereign's jurisdiction, and of its exercise being vested in Parliament the Sovereign, apart, British subjects in Oriental countries are as of positive much cut off from the direct interference of Parliament as they

are in civilized countries.

legislation over British subjects in Oriental

The question whether the extra-territorial legislation of countries. England is properly applicable, either specially, or generally,

under the Order applying the whole body of English law to cf. post, p. 98. British subjects seems to depend on other considerations.

VI.

Jurisdiction by Sufferance.

Most-favoured-nation Treatment.

THE position maintained in the foregoing pages is that the whole question of exterritoriality rests on the Treaty: and this both from the point of view of the Sovereign of the foreign country in which it is exercised, and also from the point of view of the persons who are subject to it.

If in a foreign country under ordinary conditions it is beyond the power either of the Sovereign or of Parliament to legalize the commission of any act in that country which is wrongful by the law of that country, or which requires the authority of that law, it must also be beyond the power either of the Sovereign or of Parliament to legalize its commission in a country where exterritorial privileges have been granted, unless it be in fact one of the privileges.

In other words, it is not competent either for the Sovereign or for Parliament to tack on to the powers with which the Consular Courts and officers are invested under the Treaty, other powers which do not exist in other countries and are not to be found among the Treaty privileges. The mere fact that there are an Executive and a Judiciary by which such powers may be carried out cannot render them legitimate.

The Foreign Jurisdiction Act, however, recites that this jurisdiction exists by "Treaty, capitulation, grant, usage, sufferance,

cf. p. 217.

Can Sufferance coexist with Treaty.

and other lawful means." The first three obviously fall under the general head of "Treaty": the last three may conveniently be treated under the head of "sufferance." Practically there are no other "lawful means" of acquiring such a jurisdiction.

With regard to foreign jurisdiction resting solely on sufferance there is little to be said. So far as it is possible to trace the matter, Zanzibar is the only country in which it appears ever to have been claimed as exercisable on sufferance; and in this case a Treaty in which the matter was dealt with was afterwards concluded.

The important question to consider, however, is, whether Sufferance can coexist with Treaty as the basis of the rights. A priori I confess that I should have doubted it: at least diplomatic protest should be sufficient to break the continuity of the sufferance. But, as we are looking at the question from two sides, it is well to see how the matter stands with regard to the British subject in the absence of diplomatic protest on the part of the foreign Sovereign. On this question there is the authority of Dr. Lushington in the case of Papayanni v. The Russian Steam Navigation Co. "The Laconia" (2 Moore's Privy Council Cases, New Series, at p. 181). "It is true beyond all doubt," said the learned judge, "that, as a matter of right, no State can claim jurisdiction of any kind within the territorial limits of another independent State. It is also true that between two Christian. States all claims for jurisdiction of any kind, or exemption from jurisdiction, must be founded on Treaty, or engagements of similar validity . . . But though, according to the laws and usages of European nations, a cession of jurisdiction to the subjects of one State within the territory of another would require, generally at least, the sanction of a Treaty, it may by no means follow that the same strict forms, the same precision of Treaty obligations, would be required or found in intercourse with the Ottoman Porte. It is true, as we have said, that if you enquire as to the existence of any particular privileges conceded to one State in the dominions of another, you would, amongst European nations, look to the subsisting Treaties; but this mode of incurring obligations, or of investigating what has been conceded, is matter of custom and not of natural justice. Any