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 (k). These Statutes were necessary because, by the Common Law, the grand 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 (1).

CCCXXXV. The exercise of Civil Jurisdiction over foreigners will be chiefly considered in Volume IV. of this work.

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 remark applies even where the offence has been committed 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 wrong-doers wheresoever the wrong may have been done (m). 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.

(k) 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; 9 Geo. IV. c. 31, s. 32, repealed by 24 & 25 Vict. c. 95; 4 & 5 W. IV. c. 36, s. 22; 7 & 8 Vict. c. 2, ss. 1, 2, 3 & 4; 36 & 37 Vict. c. 88, ss. 5, 26; 41 & 42 Vict. c. 67, s. 6.

Statutes relating to offences committed out of England, in particular places:-57 Geo. III. c. 53; 6 & 7 Vict. c. 94; 39 & 40 Vict. c. 46; 41 & 42 Vict. c. 67.

See also Reg. v. Keyn, L. R. 2. Ex. D. 63, and the Act 41 & 42 Vict. c. 73, passed in consequence of the decision in that case, supra, p. 277. (1) Stephen's Blackstone, vol. iv. bk. vi. ch. 18, p. 424 (Ed. 1858). (m) Lord Stowell, speaking of slavery, says that it has been suggested

This assumed Jurisdiction is doubly reprehensible:-First, as being usurpation of the Rights of another State; and, secondly, as being a violation of what Heffter justly calls a ruling maxim (herrschende 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 (n).

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 Adm. Rep. p. 248.

(n) Heffter, s. 36, n.

CHAPTER XIX.

EXCEPTIONS TO THE TERRITORIAL RIGHT OF JURISDICTION.

CCCXXXVI. 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 dicenti impune non paretur” (a).

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 Christians in Infidel countries.

So early, indeed, as the sixth century, a derogation from the rule of European International Law began to develop 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 (b). But after the Ottoman Power became established in Europe, Christian nations trading with the territories subject to that Power, obtained from it, at different periods,

(a) Dig. ii. t. 1, 20.

(b) Miltitz, Manuel des Consuls, i. 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 B. 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).

a concession of exclusive authority over their own subjects, nearly identical with that which the Christian jus commune (c) had conceded to foreign ships of war in their ports.

The vital and ineradicable differences (d) which must always separate the Christian from the Mohammedan 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.

With reference to this subject, however, it was observed by their Lordships of the Privy Council that, "though "the Ottoman Porte could give, and has given, to the "Christian Powers of Europe authority to administer "justice to their own subjects according to their own laws, "it neither has professed to give, nor could give, to one such "Power any Jurisdiction over the subjects of another Power. "But it has left those Powers at liberty to deal with each "other as they may think fit, and if the subjects of one country desire to resort to the tribunals of another, there "can be no objection to their doing so, with the consent of "their own Sovereign, and that of the Sovereign to whose "tribunals they resort.

66

66

"There is no compulsory power in an English Court in Turkey over any but English subjects; but a Russian or any other foreigner may, if he pleases, voluntarily resort to it with the consent of his Sovereign, and thereby submit "himself to its jurisdiction " (e).

66

(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 supra, p. 87.

Vide post, vol. ii. part vii. ch. 5.

"Consuls in the Levant-in China." (e) The Laconia, 2 Moore, P. C. Rep. N. S. p. 185 (1864).

The peculiar character of the British settlement in India, as distinguished from the ordinary case of the occupation of a barbarous country by Europeans, is clearly stated in the following judgment of the same tribunal:-"Where Englishmen establish themselves in an uninhabited

CCCXXXVII. 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 (f); and this privilege has been continued by a series of subsequent capitulations or diplomas of concession.

or barbarous country, they carry with them not only the laws, but the sovereignty of their own State; and those who live amongst them, and become members of their community, become also partakers of, and subject to, the same laws.

"But this was not the nature of the first settlement made in India-it. was a settlement made by a few foreigners for the purpose of trade in a very populous and highly civilized country, under the government of a powerful Mahometan ruler, with whose sovereignty the English Crown never attempted nor pretended to interfere for some centuries afterwards. "If the settlement had been made in a Christian country of Europe, the settlers would have become subject to the laws of the country in which they settled. It is true that in India they retained their own laws for their own government within the factories which they were permitted by the ruling powers of India to establish; but this was not on the ground of general international law, or because the Crown of England or the laws of England had any proper authority in India, but upon the principles explained by Lord Stowell in a very celebrated and beautiful passage in the case of The Indian Chief (3 Rob. Adm. Rep. p. 28).

"The laws and usages of Eastern countries, where Christianity does not prevail, are so at variance with all the principles, feelings, and habits of European Christians, that they have usually been allowed by the indulgence or weakness of the potentates of those countries to retain the use of their own laws, and their factories have for many purposes been treated as part of the territory of the sovereign from whose dominions they come. But the permission to use their own laws by European settlers does not extend those laws to natives within the same limits, who remain to all intents and purposes subjects of their own sovereign, and to whom European laws and usages are as little suited as the laws of the Mahometans and Hindoos are suited to Europeans. These principles are too clear to require any authority to support them, but they are recognized in the judgment to which we have above referred."

Adv.-Gen. of Bengal v. R. S. Dossee, 2 Moore, P. C. Rep. N. S. pp. 59, 60 (1863).

See also Dent v. Smith L. R. 4 Q. B. 414 (1869). Messina v. Petrococchino L. R. 4 P. C. p. 144 (1872).

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