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That by the colonial ordinance No. 6 of 1815 (of which a copy is annexed), a Supreme Court of judicature was established, to which, however, no Admiralty jurisdiction was, or indeed could legally be given. But by the Imperial Act 12 & 13 Vict. c. 91, s. 1, it is enacted that colonial courts of justice shall have the same authority to try offences committed within the jurisdiction of the Admiralty, as if these offences had been committed on any waters within the limits of the colony, and of the jurisdiction of the colonial courts.
In obedience to your commands, we have taken the papers into consideration, and have the honour to report, that we are of opinion—
1. That no British authority could, consistently with the law of England, or with the law of nations, take cognizance of such a case as that described.
2. It follows that the Supreme Court of Hong Kong has not the necessary authority to take cognizance of the case.
J. D. Harding.
The Right Hon. Sir J. Pakington, Bart., Fred. Thesigeb.
&c. &c. &c. Fitzroy Kelly.
(11.) Joint Opinion of the Queen's Advocate, Sir J. D. Harding, and the Attorney and Solicitor General, Sir R. Bethell and Sir H. S. Keating, that a person charged in a Colony with any offence under 12 & 13 Vict. c. 96, cannot be sent to England for trial; nor can proceedings of such trial be revised in England.
Doctors' Commons, December 21, 1857.
Sir,—We are honoured with your commands, signified in Mr Elliot's letter of the 6th November ultimo, requesting that we would furnish you with our opinion on the following questions:—
The Act of Parliament, 12 & 13 Vict . c. 96, provides that if a person shall bo charged in any colony with any one of certain specified offences, committed within the jurisdiction of the Admiralty, the colonial judicature shall have the same powers for trying such offence as they would have possessed, and shall be authorized, empowered, and required to carry on such proceedings, for bringing the accused person to trial, as would and ought to have been carried on, if the offence had been committed within the jurisdiction of the colonial court.
Having regard to the provisions of the statute, we are requested to inform you—
1. Whether a colonial court of judicature, before which a case is brought for trial under the provisions of the 12 & 13 Vict. c. 96, possesses, either at common law, or in virtue of any statute, the power of sending the accused person to England for trial? And,
2. Whether any means exist (other than those which may be provided by the law of the particular colony), by which the proceedings on such trial may be sent to England for revision ? (i).
In obedience to your directions, we beg to report—
J. D. Harding.
&c. &c. &c. Henry S. Keating.
NOTES TO CHAPTER VII.
The general rule of law is thus expressed by Paulus, Extra territorium Extra-terrijiu dicmti impune haud parelur, Dig. ii. tit. 1, 20 : "It is true, beyond all j?TM1 jurisdicdoubt, 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 upon treaty, or engagements of similar validity. Such, indeed, were factory
establishments for the benefit of trade The formality of a
treaty is the best proof of the consent and acquiescence of parties, but it is not the only proof, nor does it exclude other proof; and more especially in transactions with Oriental States:" Papayanni v. The Bimian Steam Navigation Company, 2 Moore, P. C. (N.S.) 181.
One mode of exercising extra-territorial jurisdiction is by permanent local tribunals, under treaty or by sufferance, in Mahommedan or barbarous countries. "One form of this jurisdiction, which has existed hum the earliest times, is that of factories established for commercial purposes by a more civilized, in the territory of a less civilized, nation,
(i) Even if a colonial law were passed to enable the proceedings to be transmitted, I know of no authority which the courts here would have to deal with them.
with the consent of the latter. Factories have always heen allowed to appoint magistrates of their own, and to exercise an independent jurisdiction, from the Greek factory of Naucrates in ancient Egypt, and the factories of the Genoese and Venetians in the Levant in the middle ages, to those of the English East India Company in Hindostan:" Sir G. Cornewall Lewis on Foreign Jurisdiction (London, 1859).
In an Opinion given in 1866 hy the Attorney General, Sir Hugh Cairns, the Solicitor General, Sir William Bovill, and myself, on the question of erecting courts for the trial of British subjects in Indian territories not under the dominion of the Crown, we said : " Where no treaty exists between a foreign State and Her Majesty authorizing the creation of such tribunals as are here supposed, we are of opinion that the Governor-General in Council has no authority or power to establish it, and that no Act of Parliament could give him such power. We think that in order to create such tribunals treaties should bo entered into with foreign States authorizing their establishment, and that, notwithstanding the Foreign Jurisdiction Act, it would be advisable to have an Act of Parliament passed which should enable the GovernorGeneral of India in Council to establish them, after the assent of the foreigu States in each particular case has been obtained."
And in a later Opinion on the same subject, given in 1867, by the Attorney General, Sir John Rolt, the Queen's Advocate, Sir Robert Phillimore, the Solicitor General, Sir John Earslake, and myself, we said: "We do not think that actual treaties are necessary for the establishment of courts of justice in dependent native States. It would be sufficient if the consent of the ruling powers were obtained, and this might be evidenced by acquiescence, usage, and sufferance."
The Royal Warrant first constituting a Judicial Assessor on the Gold Coast of Africa in 1847, recites that: "We have, by usage and sufferance, or by one or other of these, or by other lawful means, power and jurisdiction within divers countries and places not of, but adjacent to, our forts and settlements on the Gold Coast:" quoted by Sir G. Cornewall Lewis on Foreign Jurisdiction; and see Earl Grey's Colonial Policy, ii. 270. By the Foreign Jurisdiction Act, 6 & 7 Vict. c. 94, which recites that, "whereas by treaty, capitulation, grant, usage, sufferance, and other lawful means, Her Majesty hath power and jurisdiction within divers countries and places out of Her Majesty's dominions," but doubts had arisen how far the exercise of such power and jurisdiction is controlled by the laws and customs of this realm, it is enacted that Her Majesty may exercise any power or jurisdiction which she has within any country or place not her dominions in the same and as ample a manner as if such power or jurisdiction had been acquired by the cession or conquest of territory. The same Act gives power to send persons charged with crimes in such countries or places for trial to any British colony. The statute 3 & 4 Will. 4, c. 93, empowers the Crown to appoint Superintendents of Trade in China, and by Order in Council to give them power and authority to make regulations for the government of British subjects in China, and to impose penalties, forfeitures, or imprisonments for the breach of such regulations, and to create a court of justice with criminal and admiralty jurisdiction for the trial of offences committed by British subjects within the dominion of China and on the high seas within one hundred miles of the coast of China: see Evans v. Hutton, 4 M. & G. 954.
Many of the German States, some of the Swiss Cantons, Portugal, | Russia, and Norway, punish all offences of their subjects committed in foreign parts, whether against themselves, their subjects, or foreigners: Woolsey's International Law, s. 78. The French law does not punish crimes of Frenchmen against foreigners, nor deliis of one Frenchman against another, on foreign soil, nor " crimes " of Frenchmen against Frenchmen except on complaint of the injured party, but punishes offences against the Government and public safety of France, including the counterfeiting of its seal, coins, and paper money: Ibid.; Wheaton's International Law, s. 120, n. 77 (8th ed. by Dana). The Italian monarchy punishes high crimes of its subjects committed abroad, but treats misdemeanors by the rule of reciprocity: Ibid. Belgium and Holland punish foreign crimes of their subjects against the State1 or their fellowsubjects, but only certain crimes of 6uch subjects in foreign parts against foreigners: Woolsey, s. 78. Great Britain and the United States do not punish a foreigner found within their limits for a crime committed abroad against their Governments or their subjects, but France docs, following the analogy of its treatment of its subjects under like circumstances.
It has been decided in France that French criminal law is for Frenchmen a personal statute, that it binds them in foreign countries, and that consequently when they have committed a crime or a misdemeanor in a foreign land, they can always be prosecuted for this crime or misdemeanor on their return to France: Speech of M. Portalis in the Chamber of Peers in 1842. (M. Portalis had been a member of the Cour de Cassation for many years.)
It is a general rule that a State will not try its own subjects for offences committed abroad against foreign States or their subjects; Wheaton, Bm sup. Dana, in a note there, says that this seems to be a rule almost without exception. But an exception occurs in the case of Great Britain; for by statute 24 & 25 Vict. c. 100, s. 9, where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen's dominions or without, and whether the person killed was a subject of Her Majesty or not, every such offence committed by any subject of Her Majesty may be tried in any county or place, in England or Ireland, where the offender shall be apprehended or be in custody: see B. v. Azzopardi, 2 Moody, C. C. 288.
But by the common law of England no court of justice in this country has jurisdiction to try a crime committed abroad. With respect to crimes committed on the high seas by British subjects, the Court of Admiralty had jurisdiction by statute 28 Hen. 8, c. 15; 39 Geo. 3, c. 37; 46 Geo. 3, c. 54 j 4 & 5 Will. 4, c. 36; 7 & 8 Vict. c. 2. See statute 12 & 13 Vict. c. 96, for the prosecution and trial in Her Majesty's colonies of offences committed within the jurisdiction of the Admiralty. This Act was extended to the East Indies by statute 23 & 24 Vict , c. 88.
In a case submitted in 1849 to the Queen's Advocate, Sir John Dodson, where a felonious assault had been committed on the high seas by an inhabitant of the Virgin Islands, it was stated that the Chief Justice of the colony was of opinion that there was no local court of competent jurisdiction to try the offender, and that it would be necessary that a commission under the great seal for the holding of Admiralty sessions should be issued. The Queen's Advocate gave it as his opinion that the case was one which might be tried under the provisions of statute 12 & 13 Vict. c. 96, and that there was no necessity for the issue of a commission under the great seal for trial of the offender. And in another case, in 1851, the Law Officers—Sir J. Dodson, Queen's Advocate, Sir J. Romilly, A.G., and Sir A. Cockburn, S.G.— were of opinion that the 12 & 13 Vict. c. 96 is an enabling statute, not repealing any authority possessed by the Crown prior to it, and that since the passing of that Act it remains in Her Majesty's power to issue commissions, as was customarily done under the 46 Geo. 3, c. 54, for the trial of offences specified in the later Act, and that commissions issued before it passed were still in force. They added that, if there could not be an impartial trial in the colony (Tortola), they thought it was competent for the Governor to transfer the offenders for trial to another colony, where there was a commission in force. Also in another case, in 1851, where two persons had been tried and convicted of piracy on the high seas, at a Commission Court held at Honduras, and an objection was taken that the crime of which the prisoners were convicted was committed before the Act 12 & 13 Vict. c. 96 was passed, the same Law Officers were of opinion that the objection was invalid, inasmuch as the prisoners were charged after the passing of the Act. They held, however, that an objection, that the Commission Court, according to statute 59 Geo. 3, c. 44, and the letters patent of the Crown by which it was constituted, had no jurisdiction to try eo nomine for piracy, and that statute 12 & 13 Vict . c. 96 only contemplated the trial by any colonial court of the same offences when committed on the high seas which the same court might previously have tried if committed upon any inland waters, was valid: see the Opinion of the Law Officers, p. 227, ante.
The Merchant Shipping Act, 1854(17& 18 Vict. c. 104, s. 207), enacts that all offences against property or person committed at any place, either ashore or afloat, out of Her Majesty's dominions by any British seaman, who at the time of the offence committed, or within three months previously, has been emploj'ed in any .British ship, shall be tried as if such offences had been committed within the jurisdiction of the Admiralty; and certain rules are given in the Act with respect to