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Slave-Trade Suppression Treaties. 199
Admiralty Court at Aden, and any of Her Majesty's Consuls within the dominions of the Sovereigns of Zanzibar, Muscat, and Madagascar, when exercising jurisdiction in pursuance of certain recited Orders in Council.
The Consolidation Act of the same year (1873)1, which has for its purpose the 'carrying into effect 'treaties for the more effectual suppression of the Slave 'Trade, and for other purposes connected with the 'Slave Trade,' is far more comprehensive in its objects than any previous Act. It makes provision for carrying into effect not only all existing treaties for the more effectual suppression of the Slave Trade, but'any 'Treaty which may hereafter be made by or on behalf 'of Her Majesty with any foreign State,' for the same purpose. The general principle of all these Acts is, to treat any vessel belonging to the citizens of contracting Powers, engaged in or fitted out for the Slave Trade, or suspected of being so, in exactly the same way as an enemy's ship is treated in time of war; and to give all the necessary powers to the commanders and officers of Her Majesty's ships to visit, seize, and detain suspected vessels, and to carry them away, with those on board, to a Vice-Admiralty Court for adjudication. The Acts provide in detail for all the subsequent proceedings, and for giving bounties, estimated on the value of every slave released, to the commanders who effect the capture.
An interesting case of the extension of jurisdiction by the mere fiat of an Act of Parliament is presented by the passing of the Territorial Waters Jurisdiction
1 36 and 37 Vict. cap. 88.
Act of 1878.1 A case had recently occurred which had raised the question whether the criminal jurisdiction of a British court extended as far as three miles from the shore of the British dominions. A German ship, the Franconia, had run down an English one, the Strathclyde, at a distance of about two and a half miles from the port of Dover, and the German captain had been put upon his trial for manslaughter, and convicted. It was objected at the trial that the prisoner was a foreigner, in a foreign vessel, out of the jurisdiction of the Court. The decision was appealed against, and after an argument before thirteen Judges in the Court for the Consideration of Crown Cases Reserved, the conviction was quashed by a majority of one. Mr. Justice Lush laid down the principle that the dominion of the territorial waters round the British Islands was not a dominion arising out of Common Law, but by the action of Parliament; and therefore that, although as regarded all foreign countries the waters surrounding Great Britain were termed the territorial waters of this country, yet when jurisdiction had to be exercised, it could only be exercised by the authority of Parliament. But in 1848, in an Act for the regulation of the Customs, there was an actual limit of jurisdiction assigned for the case of the Cinque Ports, and that limit was established seaward at three miles from lowwater mark. The majority of the Judges, however, thought that the original jurisdiction over the high seas round the kingdom was in the Lord High Admiral, and did not attach to foreigners; and that the Act
1 41 and 42 Vict. cap. 73. See the Lord Chancellor's speech on introducing the Bill in the House of Lords, February 14, 1878.
yurisdiction in Territorial Waters. 201
which transferred it to the Crown only transferred it as it existed. In introducing in the House of Lords a Bill for regulating 'the law relating to the trial of 'offences committed on the sea within a certain distance 'from the coasts of Her Majesty's dominions,' the Lord Chancellor argued at considerable length that it was competent for Parliament to legislate with respect to the zone of waters immediately about the British Islands without the consent of foreign nations. The Bill, which, when passed, became 'The Territorial Waters Jurisdiction Act, 1878,' contains a recital which is not without both constitutional and international importance. It asserts that' the rightful jurisdiction of Her 'Majesty, her heirs and successors, extends, and has 'always extended, over the open seas adjacent to the 'coasts of the United Kingdom, and of all other parts 'of Her Majesty's dominions, to such a distance as is 'necessary for the defence and security of such domi'nions.' And ' it is expedient th at all offences com'mitted on the open sea, within a certain distance of
• the coasts of the United Kingdom and of all other 'parts of Her Majesty's dominions, by whomsoever 'committed, should be dealt with according to law.' The Statute then enacts (section 2) that 'an offence 'committed by a person, whether he is or is not a sub'ject of Her Majesty, on the open sea within the terri'torial waters of Her Majesty's dominions, is an offence 'within the jurisdiction of the Admiral, although it 'may have been committed on board or by means of a 'foreign ship, and the person who committed such 'offence may be arrested, tried, and punished accord
* ingly.' It is interesting to notice that in the course of this Act the expressions 'Law of Nations' and 'International Law' both occur in a way which seems to impart to that Law a substantive character and significance which, though often admitted by Judges in the course of making vague observations about the mode in which the Common Law embodies the Law of Nations,—as it is also said to embody the Law of God, and probably most other sorts of Law which are matters of commendation,—have not often, if ever, been formally conceded to it by Act of Parliament. The fifth section enacts, that 'nothing in this Act contained shall be 'construed to be in derogation of any rightful jurisdic'tion of Her Majesty, her heirs or successors, under the 'Law of Nations.' The sixth section says that 'this 'Act shall not prejudice or affect the trial in manner 'heretofore in use of any act of piracy as defined by the '" Law of Nations," or affect or prejudice any law re'lating thereto.' The following interpretation-clause, however, contains the gist of the whole Act:—
'" The territorial waters of Her Majesty's domi'"nions," in reference to the sea, means such part of 'the sea adjacent to the coast of the United Kingdom, 'or the coast of some other part of Her Majesty's 'dominions, as is deemed by International Law to be 'within the territorial sovereignty of Her Majesty; 'and for the purpose of any offence declared by this 'Act to be within the jurisdiction of the Admiral, any 'part of the open sea within one marine league of the 'coast, measured from low-water mark, shall be deemed 'to be open sea within the territorial waters of Her 'Majesty's dominions.'
3. The dictum has just been alluded to that the Common Law of England embodies International Law. It is obviously nothing more than an ornate dictum, Enforcement of International Law. 203
because it is notorious that some of the gravest political perplexities into which this country has been pluiiged of late years have been due to the confessed insufficiency of English Common or Statute Law to enable the British Government to carry into effect the undisputed duties and liabilities to which the country was subject by International Law. Thus, an important function of Parliament in respect to Foreign Affairs has been that of giving increased powers to the Government of discharging international legal liabilities, and, so far as is possible, of enforcing on British citizens generally the legal duties which International Law imposes upon them. The most urgent occasion for such Parliamentary intervention arises when this country is neutral during a war between two foreign States, with both of which British subjects are habituated to have constant and extensive mercantile or social relations. In these cases the abstract neutrality of the country as a whole, and of the Government as its representative, is seldom shared by the bulk of the trading community and of private citizens. There is generally an inclination of sympathy to one of the belligerents or the other; and it usually happens that a considerable division of feeling exists in the country as to which side it is hoped will eventually prosper. Such uncertain determinations of mere feeling are greatly intensified, if not wholly directed, by personal interests.
It cannot be said that, in legislating for the purpose of ensuring the observance of neutral duties on the part of British citizens, Parliament has succeeded in maintaining a strictly logical course, so as to discriminate with exactness and impartiality between the un-neutral acts which shall be prevented, and those which, so far