Act of 1878.

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

141 and 42 Vict. cap. 73. See the Lord Chancellor's speech on introducing the Bill in the House of Lords, February 14, 1878.

Jurisdiction 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 that 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 jurisdiction 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:

6

""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.'

6

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 plunged 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

as English law is concerned, shall be allowed. Perhaps the only recognisable principle in this class of legislation is, that those acts alone have been made the topics of it which, from the magnitude of the operations they necessarily cover, or the overtness with which they must be conducted, or the decisiveness of their bearing on the belligerent issue, seem to be singled out as the only possible and suitable ones for inviting the special intervention of the Legislature in derogation of the muchprized liberty of the subject.

The most noticeable instances in recent times of support given to the sanctions of International Law and Policy by statutory enactments are supplied by legislation for the purpose of preventing the negotiation of loans in this country, when belligerent, with the citizens or Government of a neutral State, with the purpose of the money so lent being transferred to the State with which this country is at war; and the amended Foreign Enlistment Act of the present reign, by which shipbuilding and enlisting of soldiers in this country, when neutral, for the benefit of any belligerent Power, are subjected to preventive measures and penalties of a wholly unprecedented kind.

The difficulty of legislating for the case of succouring a State at war with England by the negotiation of loans is enhanced by the fact that these loans are always negotiated through the medium of a neutral State. has been held to be the law of England that if an English subject lends money to a Government at war with this country, he commits the crime of treason. The offence is that of giving aid to the enemies of the Sovereign within the realm or elsewhere. But, in the Crimean war, the case was imagined, perhaps not with